SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1994
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________ to _________
Commission file number 1-10524
UNITED DOMINION REALTY TRUST, INC.
(Exact name of registrant as specified in its charter)
Virginia 54-0857512
(State or other jurisdiction of (I.R.S. Employer
incorporation of organization) Identification No.)
10 South Sixth Street, Suite 203 Richmond, Virginia 23219-3802
(Address of principal executive offices)
Registrant's telephone number, including area code (804) 780-2691
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act
of 1934 during the preceding 12 months, and (2) has been subject to filing
requirements for at least the past 90 days.
Yes x No
Indicate the number of shares outstanding of each of the issuer's class of
common stock as the latest practicable date.
Class Outstanding at May 9, 1994
Common Stock, $1 par value 41,722,902
<PAGE>
UNITED DOMINION REALTY TRUST, INC.
BALANCE SHEETS
(unaudited)
(in thousands, except share data)
March 31, December 31,
1994 1993
Assets
Real estate owned (Note 6):
Apartments $ 532,227 $ 503,226
Shopping centers 74,450 74,404
Office and industrial buildings 4,593 4,583
611,270 582,213
Less accumulated depreciation 97,150 91,444
514,120 490,769
Cash and cash equivalents 10,489 5,773
Other assets 10,993 9,298
$ 535,602 $ 505,840
Liabilities and Shareholders' Equity
Mortgage notes payable $ 72,660 $ 72,862
Notes payable 188,101 156,558
Accounts payable, accrued expenses
and other liabilities 10,631 9,169
Distributions payable to shareholders 8,130 7,288
279,522 245,877
Shareholders' equity (Note 4):
Common stock, $1 par value;
60,000,000 shares authorized
41,703,785 shares issued and
outstanding (41,653,097 in 1993) 41,704 41,653
Additional paid-in capital 302,981 302,486
Notes receivable from officer shareholders (4,096) (4,384)
Distributions in excess of net income (84,509) (79,792)
Total shareholders' equity 256,080 259,963
$ 535,602 $ 505,840
<PAGE>
UNITED DOMINION REALTY TRUST, INC.
STATEMENTS OF OPERATIONS
(unaudited)
(in thousands, except per share data)
Three Months Ended
March 31,
1994 1993
Income:
Property operations:
Rental income $26,706 $20,182
Rental expenses 11,385 8,171
Real estate depreciation 5,706 4,611
9,615 7,400
Interest and other income 114 56
9,729 7,456
Expenses:
Interest 4,655 3,913
General and administrative (Note 5) 1,474 823
Other depreciation and amortization 185 131
6,314 4,867
Income before gains (losses) on invest-
ments and extraordinary item 3,415 2,589
Loss on sale of investment -- --
Income before extraordinary item 3,415 2,589
Extraordinary item - early
extinguishment of debt -- --
Net income $ 3,415 $ 2,589
Net income per share:
Before extraordinary item $ .08 $ .07
Extraordinary item -- --
$ .08 $ .07
Dividends declared per share $ .195 $ .175
Weighted average number of
shares outstanding 41,688 35,312
<PAGE>
<TABLE>
UNITED DOMINION REALTY TRUST, INC.
STATEMENTS OF CASH FLOWS
(unaudited)
(in thousands)
Three Months Ended
March 31
1994 1993
<S> <C> <C>
OPERATING ACTIVITIES:
Net income $ 3,415 $ 2,589
Adjustments to reconcile net income to
net cash provided by operating activities:
Depreciation and amortization 5,895 4,742
Adoption of SFAS No. 112 "Employers' Accounting
for Postemployment Benefits" (Note 5) 450 --
Changes in operating assets and liabilities:
Decrease in rents and other receivables 20 580
Increase in accounts payable and accrued expenses 1,009 2,390
Increase in prepaid expenses and other assets (386) (131)
Net cash provided by operating activities 10,403 10,170
INVESTING ACTIVITIES:
Acquisitions of real estate, net of debt assumed (27,227) (29,074)
Capital expenditures (3,356) (1,277)
Collection of mortgage notes receivable 44 1
Net cash used in investing activities (30,539) (30,350)
FINANCING ACTIVITIES:
Net proceeds from issuance of shares 834 443
Increase in mortgages and notes payable 15,000 52,000
Net borrowings (repayments) under bank lines of credit 16,650 (20,700)
Cash distributions paid to shareholders (7,291) (5,824)
Scheduled mortgage principal payments (202) (184)
Payments on notes and non-scheduled
mortgage principal payments (106) (2,566)
Financing costs related to $75 million public debt
offering (Note 3) (33) --
Net cash provided by financing activities 24,852 23,169
Net increase in cash and cash equivalents 4,716 2,989
Cash and cash equivalents, beginning of period 5,773 1,105
Cash and cash equivalents, end of period $ 10,489 $ 4,094
</TABLE>
UNITED DOMINION REALTY TRUST, INC.
Notes to Financial Statements
March 31, 1994
(Unaudited)
(1) The financial information furnished reflects all adjustments which are
necessary for a fair presentation of financial position at March 31,
1994 and the results of operations for the interim periods ended March
31, 1994 and 1993. These adjustments are of a normal and recurring
nature. Such interim results are not necessarily indicative of the
results that can be expected for a full year. The accompanying
financial statements should be read in conjunction with the audited
financial statements and related notes appearing in the Trust's 1993
Annual Report.
(2) Certain previously reported amounts have been reclassified to conform
with the current financial statement presentation.
(3) On April 7, 1994, the Trust issued $75 million of 7 1/4% senior
unsecured notes due April 1, 1999. The net proceeds of $74.3 million
were used to repay, in full, then existing bank debt and to fund
subsequent apartment acquisitions.
(4) At the Annual Shareholders' Meeting on May 10, 1994, the Trust's
Shareholders voted to increase the authorized shares of Common Stock to
100 million shares and also authorized a new class of 25 million shares
of Preferred Stock.
(5) At the beginning of 1994, the Trust adopted the provisions of SFAS No.
112, "Employers' Accounting for Postemployment Benefits". Under the new
method of accounting, the Trust accrues the benefits when it is probable
that such benefits will be paid and when sufficient information exists to
make reasonable estimates of the amounts to be paid. As required by the
Statement, prior year financial statements have not been restated to
reflect the change in accounting method. The cumulative effect of this
accounting change was to decrease net income by $450,000 or $.01 per share
for the first quarter of 1994. This change is included in the caption
"general and administrative" expense in the Trust's income statement.
(6) A summary of the Trust's apartment acquisitions made during the three
months ended March 31, 1994 is as follows:
Acquisition
Date Number Cost
Acquired of Units Location (in millions)
3/04/94 302 Raleigh, NC $13.8
3/10/94 346 Tampa, FL 12.0
648 $25.8
(7) Subsequent to March 31, 1994, the Trust has also completed the following
apartment acquistions:
Acquisition
Date Number Cost
Acquired of Units Location (in millions)
4/08/94 240 Macon, GA $ 8.6
4/14/94 360 Altamonte Springs, FL $12.6
4/15/94 244 Tampa, FL 5.9
844 $27.1
On April 1, 1994, the Trust entered into 28 separate but related
contracts to purchase 28 apartment communities containing 5,882 units at
a purchase price of approximately $188 million. The contracts provide
for a due diligence period through June 1, 1994, during which time the
Trust may terminate the contracts for any reason without penalty. If,
after completing due diligence, the Trust elects to proceed with the
acquisition, closing will be scheduled for July, 1994.
<PAGE>
UNITED DOMINION REALTY TRUST, INC.
Form 10-Q
Quarter Ended March 31, 1994
MANAGEMENT'S DISCUSSION OF FINANCIAL CONDITION AND OPERATIONS
Funds from operations is defined as income before gains (losses) on
investments and extraordinary items adjusted for certain non-cash items,
primarily real estate depreciation. The Trust considers funds from
operations in evaluating property acquisitions and its operating performance
and believes that funds from operations should be considered along with, but
not as an alternative to, net income and cash flows as a measure of the
Trust's operating performance and liquidity. Funds from operations does not
represent cash generated from operating activities in accordance with
generally accepted accounting principles and is not
necessarily indicative of cash available to fund cash needs.
RESULTS OF OPERATIONS
For the first quarter of 1994, the Trust reported increases over the
comparable 1993 quarter in rental income, income from property operations,
net income, and funds from operations. First quarter 1994 rental income was
$26.7 million compared to $20.2 million in first quarter 1993, an increase
of $6.5 million or 32.3%. Income from property operations excluding
depreciation, increased from $12.0 million to $15.3 million, an increase of
$3.3 million or 27.6%. Net income for the current quarter totaled $3.4
million which was $826,000, or 31.9%, greater than the $2.6 million reported
in last year's first quarter. On a per share basis, net income increased
from $.07 for the first quarter of 1993 to $.08 in the first quarter of 1994.
Net income for the 1994 quarter includes a $450,000 charge ($.01 per share)
reflecting the Trust's implementation of the provisions of SFAS No. 112,
"Employers' Accounting for Postemployment Benefits". Funds from operations
increased 33.1% from $7.3 million last year to $9.8 million in the current
year's first quarter.
The Trust's 1993 acquisitions made the largest contribution to the
reported increases. The Trust's first quarter 1994 acquisitions and improved
results from its core portfolio of mature apartments and commercial
properties also had a positive impact on first quarter results. For the
Trust's 13,832 mature apartment units (57 communities) that have been owned
since the beginning of 1993, occupancy increased 1.2% to 92.5% in the current
quarter compared to 91.3% for the first quarter last year. Average rents at
these properties grew by 3.0% and operating expenses increased approximately
5.5%, increasing the operating expense ratio 0.3% to 44.7%. As a result, net
operating income from these apartment units increased 4.1% or $386,000. For
the remaining 4,730 apartment units (19 communities), acquired by the Trust
since January 1, 1993, occupancy averaged 91.1% and operating expenses at
these properties were 44.9% of revenues during the 1994 quarter.
For the first quarter, net operating income from commercial properties
increased 7.6%, or $141,000, from the first quarter last year, primarily
reflecting additional small tenant leases. Average occupancy increased 1.1%
to 84.5% compared to the same quarter last year.
During the first quarter, interest expense was approximately $742,000
higher than it was in the first quarter of 1993 ($4.7 million in 1994 versus
$3.9 million 1993) as the Trust had more debt outstanding in 1994 than in
1993. At March 31, 1994, the Trust's total debt (mortgage and unsecured
notes payable) was $260.7 million versus $209.7 million last year.
For the first quarter of 1994, depreciation expense increased to $5.7
million versus $4.6 million in 1993, reflecting the portfolio expansion that
has occurred during the past year.
Management expects that the Trust's operating results for the second
quarter of 1994 will show continued improvement when compared to the
comparable period last year reflecting the continued positive impact of the
1993 and 1994 acquisitions and anticipated occupancy gains and rent growth.
At the beginning of April, mature apartment occupancy was more than 2% higher
than it was at the beginning of the year. Management believes that the
Trust's operating results should improve further during the next few years
for a number of factors including (i) the contribution of the large volume of
units acquired since 1991 and expected to be acquired during the remainder of
1994 and (ii) improving apartment markets as a result of anticipated
population and job growth in the Southeast and the lack of significant multi-
family construction.
FINANCIAL CONDITION
As a qualified REIT, the Trust distributes a substantial portion of its
cash flow to its shareholders in the form of dividends. Consequently, new
acquisitions, property renovations and expansions, major capital improvements
and balloon debt payments are funded by a variety of primarily external
sources including bank borrowings, the issuance of equity and debt in public
and private transactions and, to a much lesser extent, property sales and
mortgage financings.
At the beginning of 1994, the Trust had approximately $5.8 million of
cash and cash equivalents and $32.4 million of available and unused bank
lines of credit. During the first quarter, the Trust expanded its bank lines
of credit to $73.5 million, an increase of $12.5 million since December 31,
1993. On April 7, 1994, the Trust completed a $75 million public offering of
7 1/4% senior unsecured notes due April 1, 1999. The notes were priced at
99.833% to yield 7.29% to maturity. The net proceeds from the debt offering
of approximately $74.3 million were utilized to repay, in full, outstanding
bank debt and to fund subsequent apartment acquisitions.
During the first quarter of 1994, the Trust acquired two apartment
communities (648 units) at a total cost of approximately $25.8 million, all
cash. On March 4, 1994, the Trust acquired a 302 unit garden and townhouse
community in Raleigh, North Carolina that was purchased for $13.8 million
($45,400 per unit). On March 10, 1994, the Trust acquired a 346 unit garden
community in Tampa, Florida for $12.0 million ($34,700 per unit).
At the beginning of April, the Trust executed individual contracts to
purchase a group of 28 apartment communities containing 5,882 units for
approximately $188 million. All but one of the properties are located in the
Southeast. Approximately two-thirds of the units are located in four
markets: Baltimore, Charlotte, and Columbia and Greenville, South Carolina.
The Trust is currently performing the due diligence necessary to determine
whether to proceed with the acquisition. The due diligence period runs
through June 1, 1994 during which time the Trust may terminate the contracts
for any reason without penalty. If, after completing due diligence, the
Trust elects to proceed with the purchase, it is expected that the
transaction would close in July. If the transaction is consummated as
planned, it is expected to have an immediate positive impact on the Trust's
operating results.
In April, 1993, the Trust engaged outside property management for most
of its shopping centers properties following the decision to exit the
commercial property business. Although no formal plan has been adopted,
management intends to offer the Trust's seven Richmond, Virginia shopping
centers for sale sometime during the remainder of 1994. Management has
committed to developing alternative strategies that will enable the Trust to
dispose of most of these properties over the next few years.
The Trust's liquidity and capital resources are believed to be more than
adequate to meet its cash requirements for the foreseeable future.
<PAGE>
UNITED DOMINION REALTY TRUST, INC.
Form 10-Q
Quarter Ended March 31, 1994
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) The exhibits listed on the accompanying index to exhibits are filed
as part of this quarterly report.
(b) Reports on Form 8-K
(i) A Form 8-K dated December 22, 1993 was filed with the
Securities and Exchange Commission on December 22, 1993 as
subsequently amended by Form 8-K/A filed on February 18, 1994.
The filing reported the acquisition of certain properties
which in the aggregate were deemed to be significant. The
financial statements filed as part of this report are the
statements of rental operations of the Village at Old Tampa Bay
Apartments, Peppertree Apartments and Beechwood Apartments.
(ii) A Form 8-K dated December 22, 1993, was filed with the
Securities and Exchange Commission on December 22, 1993 as
subsequently amended by Form 8-K/A filed January 20, 1994.
The filing reported the acquisition of Beechwood Apartments in
Greensboro, North Carolina on December 22, 1993 which was
inadvertently omitted.
(iii) A Form 8-K dated December 31, 1993 was filed with the
Securities and Exchange Commission on December 31, 1993
as subsequently amended by Form 8-K/A filed on March 3,
1994. The filing reported the acquisition of a certain
property which in the aggregate was deemed to be
significant. The financial statement filed as part of
this report is the statements of rental operations of
Riverwind Apartments.
<PAGE>
UNITED DOMINION REALTY TRUST, INC.
FORM 10-Q FOR QUARTER ENDED MARCH 31, 1994
EXHIBIT INDEX
Item 6(a)
References to pages under the caption "Location" are to be sequentially
numbered pages of the manually signed original of this Form 10-Q, and
references to exhibits, forms or other filings indicate that the exhibit,
form or other filing referred to has been filed, that the indexed exhibit and
the exhibit referred to are the same and that the exhibit referred to is
incorporated herein by reference.
Exhibit Description Location
3(a)(i) Restated Articles of Incorporation Exhibit 3 to the
Trust's Quarterly
Report on Form 10-Q
for the quarter
ended June 30, 1992.
3(a)(ii) Amendment to Articles of Exhibit 6(a)(i) to
Incorporation the Trust's Form 8-A
Registration
Statement.
3(b) By-Laws Exhibit 4(c) to the
Trust's Form S-3
Registration
Statement
(Registration No.
33-44743) filed with
the Commission on
December 31, 1991.
4(i) Specimen Common Stock Exhibit 4(i) to the
Certificate Trust's Annual
Report on Form 10-K
for the year ended
December 31, 1993.
4(ii)(a) Loan Agreement dated as of Exhibit 6(c)(l) to the
Trust's Form November 7, 1991, 8-A Registration
between the Trust and Aid Statement
Association for Lutherans
4(ii)(b) Loan Agreement dated as of Exhibit 6(c)(2) to the
November 14, 1991, between the Trust's Form 8-A
Trust and Signet Bank/Virginia Registration Statement
4(ii)(c) Note Purchase Agreement dated Exhibit 6(c)(3) to the
as of February 19, 1992, between Trust's Form 8-A
the Trust and Principal Mutual Registration Statement
Life Insurance Company
4(ii)(d) Credit Agreement dated as of Exhibit 6(c)(4) to the
December 15, 1992, between the Trust's Form 8-A
Trust and Signet Bank/Virginia Registration Statement
4(ii)(e) Note Purchase Agreement dated Exhibit 6(c)(5) to the
as of January 15, 1993, between Trust's Form 8-A
the Trust and CIGNA Property Registration Statement
and Casualty Insurance Company,
Connecticut General Life Insurance
Company, Connecticut General Life
Insurance Company, on behalf of
one or more separate accounts,
Insurance Company of North
America, Principal Mutual Life
Insurance Company and Aid
Association for Lutherans
4 (ii)(f)(1) Indenture dated as of April 1, 1994, Filed herewith
between the Trust and NationsBank of
Virginia, N.A.. as Trustee
4 (ii)(f)(2) Resolution of the Board of Directors Filed herewith
of the Trust establishing terms of
7 1/4% Notes due April 1, 1999
4 (ii)(f)(3) Form of 7 1/4 Note due April 1, 1999 File herewith
<PAGE>
UNITED DOMINION REALTY TRUST, INC.
Form 10-Q
Quarter Ended March 31, 1994
SIGNATURES
Pursuant to the requirements of Section 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
UNITED DOMINION REALTY TRUST, INC.
Date: May 13, 1994 /s/ James Dolphin
James Dolphin, Senior Vice President
Chief Financial Officer
Date: May 13, 1994 /s/ Jerry A. Davis
Jerry A. Davis, Vice President
Corporate Controller
EXHIBIT 4(ii)(f)(1)
UNITED DOMINION REALTY TRUST, INC.
TO
NATIONSBANK OF VIRGINIA, N.A.
Trustee
Indenture
Dated as of April 1, 1994
Senior Debt Securities
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . 1
Acquired Debt . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts. . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . 2
Annual Service Charge . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . 2
Authorized Newspaper. . . . . . . . . . . . . . . . 2
Bankruptcy Law. . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . 3
Board of Directors. . . . . . . . . . . . . . . . . 3
Board Resolution. . . . . . . . . . . . . . . . . . 3
Business Day. . . . . . . . . . . . . . . . . . . . 3
Capital Stock . . . . . . . . . . . . . . . . . . . 3
CEDEL . . . . . . . . . . . . . . . . . . . . . . . 3
Commission. . . . . . . . . . . . . . . . . . . . . 3
Consolidated Income Available for Debt Service. . . 3
Conversion Event. . . . . . . . . . . . . . . . . . 3
Corporate Trust Office. . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . 4
coupon. . . . . . . . . . . . . . . . . . . . . . . 4
Custodian . . . . . . . . . . . . . . . . . . . . . 4
Debt. . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest. . . . . . . . . . . . . . . . . 4
Disqualified Stock. . . . . . . . . . . . . . . . . 4
Dollar" or "$ . . . . . . . . . . . . . . . . . . . 5
DTC . . . . . . . . . . . . . . . . . . . . . . . . 5
ECU . . . . . . . . . . . . . . . . . . . . . . . . 5
Euroclear . . . . . . . . . . . . . . . . . . . . . 5
European Communities. . . . . . . . . . . . . . . . 5
European Monetary System. . . . . . . . . . . . . . 5
Event of Default. . . . . . . . . . . . . . . . . . 5
Exchange Act. . . . . . . . . . . . . . . . . . . . 5
Foreign Currency. . . . . . . . . . . . . . . . . . 5
Funds from Operations . . . . . . . . . . . . . . . 5
GAAP. . . . . . . . . . . . . . . . . . . . . . . . 5
Government Obligations. . . . . . . . . . . . . . . 6
Holder. . . . . . . . . . . . . . . . . . . . . . . 6
Indenture . . . . . . . . . . . . . . . . . . . . . 6
Indexed Security. . . . . . . . . . . . . . . . . . 6
interest. . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . 7
Make-Whole Amount . . . . . . . . . . . . . . . . . 7
Maturity. . . . . . . . . . . . . . . . . . . . . . 7
Officers' Certificate . . . . . . . . . . . . . . . 7
Opinion of Counsel. . . . . . . . . . . . . . . . . 7
Original Issue Discount Security. . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . 7
Paying Agent. . . . . . . . . . . . . . . . . . . . 9
Person. . . . . . . . . . . . . . . . . . . . . . . 9
Place of Payment. . . . . . . . . . . . . . . . . . 9
Predecessor Security. . . . . . . . . . . . . . . . 9
Redemption Date . . . . . . . . . . . . . . . . . . 9
Redemption Price. . . . . . . . . . . . . . . . . . 9
Registered Security . . . . . . . . . . . . . . . . 9
Regular Record Date . . . . . . . . . . . . . . . . 9
Repayment Date. . . . . . . . . . . . . . . . . . . 9
Repayment Price . . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . . 9
Securities Act. . . . . . . . . . . . . . . . . . . 10
Security. . . . . . . . . . . . . . . . . . . . . . 10
Security Register" and "Security Registrar. . . . . 10
Significant Subsidiary. . . . . . . . . . . . . . . 10
Special Record Date . . . . . . . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . . . . . . . 10
Subsidiary. . . . . . . . . . . . . . . . . . . . . 10
Total Assets. . . . . . . . . . . . . . . . . . . . 10
Trust . . . . . . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act" or "TIA. . . . . . . . . . . . 10
Trust Request" and "Trust Order . . . . . . . . . . 11
Trustee . . . . . . . . . . . . . . . . . . . . . . 11
Undepreciated Real Estate Assets. . . . . . . . . . 11
United States . . . . . . . . . . . . . . . . . . . 11
United States person. . . . . . . . . . . . . . . . 11
Yield to Maturity . . . . . . . . . . . . . . . . . 11
SECTION 102. Compliance Certificates and Opinions . . . . . . . . 11
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . 12
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . . 13
SECTION 105. Notices, etc., to Trustee and Trust. . . . . . . . . 14
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . 15
SECTION 107. Effect of Headings and Table of Contents . . . . . . 16
SECTION 108. Successors and Assigns . . . . . . . . . . . . . . . 16
SECTION 109. Separability Clause. . . . . . . . . . . . . . . . . 16
SECTION 110. Benefits of Indenture. . . . . . . . . . . . . . . . 16
SECTION 111. No Personal Liability. . . . . . . . . . . . . . . . 16
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . . . 17
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . 17
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. . . . . . . . . . . . . . . . . 18
SECTION 202. Form of Trustee's Certificate of Authentication. . . 18
SECTION 203. Securities Issuable in Global Form . . . . . . . . . 19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . 20
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . 24
SECTION 303. Execution, Authentication Delivery and Dating. . . . 24
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . 26
SECTION 305. Registration, Registration of Transfer and
Exchange. . . . . . . . . . . . . . . . . . . . . . 29
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . 32
SECTION 307. Payment of Interest; Interest Rights Preserved . . . 33
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . 35
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . 36
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . 37
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . 37
SECTION 402. Application of Trust Funds . . . . . . . . . . . . . 38
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . 39
SECTION 502. Acceleration of Maturity; Rescission and Annulment . 41
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . . 42
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . 43
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons . . . . . . . . . . . . . . . 43
SECTION 506. Application of Money Collected . . . . . . . . . . . 44
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . 44
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium or Make-Whole Amount, if any,
Interest and Additional Amounts . . . . . . . . . . 45
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . 45
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . 45
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . 46
SECTION 512. Control by Holders of Securities . . . . . . . . . . 46
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . 46
SECTION 514. Waiver of Usury, Stay or Extension Laws. . . . . . . 47
SECTION 515. Undertaking for Costs. . . . . . . . . . . . . . . . 47
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . . . . . . . . . 48
SECTION 602. Certain Rights of Trustee. . . . . . . . . . . . . . 48
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . . . . . 49
SECTION 604. May Hold Securities. . . . . . . . . . . . . . . . . 50
SECTION 605. Money Held in Trust. . . . . . . . . . . . . . . . . 50
SECTION 606. Compensation and Reimbursement . . . . . . . . . . . 50
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests . . . . . . . . . . . . . . . 51
SECTION 608. Resignation and Removal; Appointment of Successor. . 51
SECTION 609. Acceptance of Appointment By Successor . . . . . . . 53
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business. . . . . . . . . . . . . . . . . . . . . . 54
SECTION 611. Appointment of Authenticating Agent. . . . . . . . . 54
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST
SECTION 701. Disclosure of Names and Addresses of Holders . . . . 56
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . . 56
SECTION 703. Reports by Trust . . . . . . . . . . . . . . . . . . 56
SECTION 704. Trust to Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Trust and Sales,
Leases and Conveyances Permitted Subject to
Certain Conditions. . . . . . . . . . . . . . . . . 58
SECTION 802. Rights and Duties of Successor Corporation . . . . . 58
SECTION 803. Officers' Certificate and Opinion of Counsel . . . . 59
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders . 60
SECTION 902. Supplemental Indentures with Consent of Holders. . . 61
SECTION 903. Execution of Supplemental Indentures . . . . . . . . 63
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . 63
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . . 63
SECTION 906. Reference in Securities to Supplemental Indentures . 63
SECTION 907. Notice of Supplemental Indentures. . . . . . . . . . 63
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount,
if any, Interest and Additional Amounts . . . . . . 64
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . . 64
SECTION 1003. Money for Securities Payments to Be Held in Trust. . 66
SECTION 1004. Limitations on Incurrence of Debt. . . . . . . . . . 68
SECTION 1005. Existence. . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1006. Maintenance of Properties. . . . . . . . . . . . . . 69
SECTION 1007. Insurance. . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1008. Payment of Taxes and Other Claims. . . . . . . . . . 69
SECTION 1009. Provision of Financial Information . . . . . . . . . 70
SECTION 1010. Statement as to Compliance . . . . . . . . . . . . . 70
SECTION 1011. Additional Amounts . . . . . . . . . . . . . . . . . 70
SECTION 1012. Waiver of Certain Covenants. . . . . . . . . . . . . 71
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . 72
SECTION 1102. Election to Redeem; Notice to Trustee. . . . . . . . 72
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. . 72
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . 73
SECTION 1105. Deposit of Redemption Price. . . . . . . . . . . . . 74
SECTION 1106. Securities Payable on Redemption Date. . . . . . . . 74
SECTION 1107. Securities Redeemed in Part. . . . . . . . . . . . . 75
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . 76
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. . . . . . . . . . . . . . . . . . . . . 76
SECTION 1203. Redemption of Securities for Sinking Fund. . . . . . 76
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . 77
SECTION 1302. Repayment of Securities. . . . . . . . . . . . . . . 77
SECTION 1303. Exercise of Option . . . . . . . . . . . . . . . . . 77
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable . . . . . . . . . . . . . . . . . . . . 78
SECTION 1305. Securities Repaid in Part. . . . . . . . . . . . . . 79
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Trust's Option to Effect
Defeasance or Covenant Defeasance . . . . . . . . . 80
SECTION 1402 Defeasance and Discharge . . . . . . . . . . . . . . 80
SECTION 1403. Covenant Defeasance. . . . . . . . . . . . . . . . . 81
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. . . 81
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions . . . 83
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. . . . . . 84
SECTION 1502. Call, Notice and Place of Meetings . . . . . . . . . 84
SECTION 1503. Persons Entitled to Vote at Meetings . . . . . . . . 85
SECTION 1504. Quorum; Action . . . . . . . . . . . . . . . . . . . 85
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings . . . . . . . . . . . . . . 86
SECTION 1506. Counting Votes and Recording Action of Meetings. . . 87
SECTION 1507. Evidence of Action Taken by Holders. . . . . . . . . 87
SECTION 1508. Proof of Execution of Instruments. . . . . . . . . . 88
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
<PAGE>
UNITED DOMINION REALTY TRUST, INC.
Reconciliation and tie between Trust Indenture Act of 1939, as amended (the
"1939 Act"), and Indenture, dated as of April 1, 1994
Trust Indenture Act Section Indenture Section
Sec. 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . .607(a)
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . .607(a)
(b). . . . . . . . . . . . . . . . . . . . . . . . . 607(b), 608
Sec. 312 (c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
Sec. 314 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . .1011
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Sec. 315 (b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
Sec. 316 (a) (last sentence). . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . .502, 512
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . . . . . 513
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
Sec. 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
Sec. 318 (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
__________________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including
317 of the 1939 Act are a part of and govern every qualified
indenture, whether or not physically contained therein.
<PAGE>
INDENTURE, dated as of April 1, 1994, between UNITED DOMINION REALTY
TRUST, INC., a Virginia corporation (hereinafter called the "Trust"), having
its principal office at 10 South Sixth Street, Suite 203, Richmond, Virginia
23219-3802, and NATIONSBANK OF VIRGINIA, N.A., a national banking
association, as Trustee hereunder (hereinafter called the "Trustee"), having
its Corporate Trust Office at 600 East Main Street, Suite 1700, Richmond,
Virginia 23219.
RECITALS OF THE TRUST
The Trust deems it necessary to issue from time to time for its lawful
purposes senior debt securities (hereinafter called the "Securities")
evidencing its unsecured and unsubordinated indebtedness, and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to aggregate
principal amount, to bear interest at the rates or formulas, to mature at
such times and to have such other provisions as shall be fixed therefor as
hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Trust, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein, and the terms "cash transaction" and "self-liquidating
paper," as used in TIA Section 311, shall have the meanings assigned to
them in the rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five, Article
Six and Article Ten, are defined in those Articles. In addition, the
following terms shall have the indicated respective meanings:
"Acquired Debt" means Debt of a Person (i) existing at the time such
Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Debt
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Debt shall be deemed to be incurred
on the date of the related acquisition of assets from any Person or the date
the acquired Person becomes a Subsidiary.
"Act" has the meaning specified in Section 104.
"Additional Amounts" means any additional amounts which are required by
a Security, under circumstances specified therein, to be paid by the Trust in
respect of certain taxes imposed on certain Holders and which are owing to
such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Annual Service Charge" as of any date means the maximum amount which is
payable in any period for interest on, and original issue discount of, Debt
of the Trust and its Subsidiaries and the amount of dividends which are
payable in respect of any Disqualified Stock.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community of each
such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or
in different Authorized Newspapers in the same city meeting the foregoing
requirements and in each ease on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means a Security which is payable to bearer.
"Board of Directors" means the Board of Directors of the Trust, the
executive committee or any other committee of that board duly authorized to
act for it in respect hereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Trust to have been duly adopted by
the Board of Directors, and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a
legal holiday nor a day on which banking institutions in that Place of
Payment or particular location are authorized or required by law, regulation
or executive order to close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, or, if at any time after
execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Consolidated Income Available for Debt Service" for any period means
Funds from Operations of the Trust and its Subsidiaries plus amounts which
have been deducted for interest on Debt of the Trust and its Subsidiaries.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
(other than the ECU or other currency unit) both by the government of the
country which issued such currency and for the settlement of transactions by
a central bank or other public institutions of or within the international
banking community, (ii) the ECU both within the European Monetary System and
for the settlement of transactions by public institutions of or within the
European Communities or (iii) any currency unit (or composite currency) other
than the ECU for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered and at which notices or demands to or upon the Trust in respect
of the Securities of or within a series and this Indenture may be served,
which office at the date hereof is located at 600 East Main Street, Suite
1700, Richmond, Virginia 23219.
"Corporate Trust Operations Office" means the office of the Trustee at
which, at any particular time, the principal of (and Make-Whole Amount, if
any), interest, if any, on, and Additional Amounts, if any, payable in
respect of, Securities of or within a series shall be payable and any
Registered Securities of or within such series may be surrendered for
registration of transfer or exchange, which office at the date hereof is
located at 715 Peachtree Street, N.E., Midtown Center, 7th Floor, Atlanta,
Georgia 30308-1297.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning set forth in Section 501.
"Debt" of the Trust or any Subsidiary means any indebtedness of the
Trust or any Subsidiary, whether or not contingent, in respect of (without
duplication) (i) borrowed money or evidenced by bonds, notes, debentures or
similar instruments, (ii) indebtedness secured by any mortgage, pledge, lien,
charge, encumbrance or any security interest existing on property owned by
the Trust or any Subsidiary, (iii) the reimbursement obligations, contingent
or otherwise, in connection with any letters of credit actually issued or
amounts representing the balance deferred and unpaid of the purchase price of
any property or services, except any such balance that constitutes an accrued
expense or trade payable, or all conditional sale obligations or obligations
under any title retention agreement, (iv) the principal amount of all
obligations of the Trust or any Subsidiary with respect to redemption,
repayment or other repurchase of any Disqualified Stock or (v) any lease of
property by the Trust or any Subsidiary as lessee which is reflected on the
Trust's consolidated balance sheet as a capitalized lease in accordance with
GAAP to the extent, in the case of items of indebtedness under (i) through
(iii) above, that any such items (other than letters of credit) would appear
as a liability on the Trust's consolidated balance sheet in accordance with
GAAP, and also includes, to the extent not otherwise included, any obligation
by the Trust or any Subsidiary to be liable for, or to pay, as obligor,
guarantor or otherwise (other than for purposes of collection in the ordinary
course of business), Debt of another Person (other than the Trust or any
Subsidiary).
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which by the terms of such Capital Stock (or by the
terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise
(i) matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, (ii) is convertible into or exchangeable or
exercisable for Debt or Disqualified Stock or (iii) is redeemable at the
option of the holder thereof, in whole or in part, in each case on or prior
to the Stated Maturity of the series of Debt Securities.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for payment of public and private debts.
"DTC" means The Depository Trust Company.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder by the Commission.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"Funds from Operations" for any period means income before gains
(losses) on investments and extraordinary items plus amounts which have been
deducted, and minus amounts which have been added, for the following (without
duplication): (a) provision for federal income taxes of the Trust and its
Subsidiaries, (b) amortization of debt discount, (c) provision for property
depreciation and amortization, (d) the effect of any noncash charge resulting
from a change in accounting principles in determining income before gains
(losses) on investments and extraordinary items for such period and (e)
amortization of deferred charges, as reflected in the financial statements of
the Trust and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP.
"GAAP" means generally accepted accounting principles as used in the
United States applied on a consistent basis as in effect from time to time;
provided, that solely for purposes of any calculation required by the
financial covenants contained herein, "GAAP" shall mean generally accepted
accounting principles as used in the United States on the date hereof,
applied on a consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued
the Foreign Currency in which the Securities of a particular series are
payable, for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or such government
which issued the Foreign Currency in which the Securities of such series are
payable, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other
government, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of
any such Government Obligation held by such custodian for the account of the
holder of a depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by
the custodian in respect of the Government Obligation or the specific payment
of interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case
of a Bearer Security, the bearer thereof and, when used with respect to any
coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, and shall include the terms of particular series of Securities
established as contemplated by Section 301; provided, however, that, if at
any time more than one Person is acting as Trustee under this instrument,
"Indenture" shall mean, with respect to any one or more series of Securities
for which such Person is Trustee, this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of the or those particular
series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is
not Trustee, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or more
indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a
party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"interest" when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, shall mean interest
payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1011,
includes such Additional Amounts.
"Interest Payment Date" means, when used with respect to any Security,
the Stated Maturity of an installment of interest on such Security.
"Make-Whole Amount" means the amount, if any, in addition to principal
which is required by a Security, under the terms and conditions specified
therein or as otherwise specified as contemplated by Section 301, to be paid
by the Trust to the Holder thereof in connection with any optional redemption
or accelerated payment of such Security.
"Maturity" means, when used with respect to any Security, the date on
which the principal of such Security or an installment of principal become
due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, notice of redemption, notice of option to
elect repayment, repurchase or otherwise.
"Officers' Certificate" means a certificate signed by the President or
a Vice President and by the Treasurer, an Assistant Treasurer, the Secretary
of an Assistant Secretary, of the Trust, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Trust or other counsel satisfactory to the
Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section
502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Trust) in trust or set aside and segregated
in trust by the Trust (if the Trust shall act as its own Paying Agent)
for the holders of such Securities and any coupons appertaining thereto;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or other
provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except solely to the extent provided in
Sections 1402 or 1403, as applicable, with respect to which the Trust
has effected defeasance and/or covenant defeasance as provided in
Article Fourteen;
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Trust; and
(v) Securities converted into Capital Stock of the Trust
pursuant to or in accordance with this Indenture if the terms of such
Securities provide for convertibility pursuant to Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders for quorum purposes, and for the purpose of
making the calculations required by TIA Section 313, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the amount of principal thereof that would be
(or shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined pursuant to
Section 301 as of the date such Security is originally issued by the Trust,
of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent as of such date of original issuance of the
amount determined as provided in clause (i) above) of such Security, (iii)
the principal amount of any Indexed Security that may be counted in making
such determination or calculation and that shall be deemed outstanding for
such purpose shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided with respect to such
Indexed Security pursuant to Section 301, and (iv) Securities owned by the
Trust or any other obligor upon the Securities or any Affiliate of the Trust
or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not
the Trust or any other obligor upon the Securities or any Affiliate of the
Trust or of such other obligor.
"Paying Agent" means any Person authorized by the Trust to pay the
principal of (and premium or Make-Whole Amount, if any) or interest on any
Securities or coupons on behalf of the Trust, or if no such Person is
authorized, the Trust.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, when used with respect to the Securities of or
within any series, the place or places where the principal of (and premium or
Make-Whole Amount, if any)
and interest on such Securities are payable as specified as contemplated by
Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to
which a mutilated, destroyed, lost or stolen coupon appertains shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security or the Security to which the mutilated, destroyed, lost or stolen
coupon appertains.
"Redemption Date" means, when used with respect to any Security to be
redeemed in whole or in part, the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price" means, when used with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security which is registered in the
Security Register.
"Regular Record Date" for the installment of interest payable on any
Interest Payment Date on the Registered Securities of or within any series
means the date specified for that purpose as contemplated by Section 301,
whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid or repurchased at the option of the Holder, the date fixed for such
repayment or repurchase by or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid or purchased at the option of the Holder, the price at which it is to
be repaid or repurchased by or pursuant to this Indenture.
"Responsible Officer" means, when used with respect to the Trustee, any
officer of the Trustee assigned by the Trustee to administer its corporate
trust matters.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder by the Commission.
"Security" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated and
delivered under this Indenture; provided, however, that, if at any time there
is more than one Person acting as Trustee under this Indenture, "Securities"
with respect to the Indenture as to which such Person is Trustee shall have
the meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of or within any series as to
which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (within the meaning of Regulation S-X, promulgated under the
Securities Act) of the Trust.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity" means, when used with respect to any Security or any
installment of principal thereof or interest thereon, the date specified in
such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation or other
entity of which a majority of (a) the voting power of the voting equity
securities or (b) the outstanding equity interests of which are owned,
directly or indirectly, by such Person. For the purposes of this definition,
"voting equity securities" means equity securities having voting power for
the election of directors, whether at all times or only so long as no senior
class of security has such voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) the Trust's
Undepreciated Real Estate Assets and (ii) all other assets of the Trust
determined in accordance with GAAP (but excluding intangibles).
"Trust" means the Person named as the "Trust" in the first paragraph of
this Indenture until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Trust" shall
mean such successor corporation.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trust Request" and "Trust Order" mean, respectively, a written request
or order signed in the name of the Trust by the President or a Vice President
of the Trust, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Trust, and delivered to the Trustee.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee"
shall mean or include each Person who is then a Trustee hereunder; provided,
however, that if at any time there is more than one such Person, "Trustee"
as used with respect to the Securities of or within any series shall mean
only the Trustee with respect to the Securities of that series.
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Trust
and its Subsidiaries on such date, before depreciation and amortization
determined on a consolidated basis in accordance with GAAP.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including
the states and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate
or trust the income of which is subject to United States federal income
taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Trust to the Trustee to take any
action under any provision of this Indenture, the Trust shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including covenants, compliance with
which constitute conditions precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (excluding certificates delivered
pursuant to Section 1010) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion as to some matters and one or more
other such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Trust may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate
or representations may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Trust stating that the information as to such factual matters
is in the possession of the Trust, unless such counsel knows that the
certificate or opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by agents duly appointed in writing. If Securities
of a series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of Securities
of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof,
whether in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or record or both instruments or record or
both are delivered to the Trustee and, where it is hereby expressly
required, to the Trust. Such instrument or instrument and any such
record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and conclusive in favor of
the Trustee and the Trust and any agent of the Trustee or the Trust, if
made in the manner provided in this Section. The record of any meeting
of Holders of Securities shall be proved in the manner provided in
Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgements of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by the Trustee to
be satisfactory, showing that at the date therein mentioned such Person
had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities,
if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Trust may assume that such ownership
of any Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer
Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered
in exchange for a Registered Security, or (4) such Bearer Security is no
longer Outstanding. The ownership of Bearer Securities may also be
proved in any other manner which the Trustee deems sufficient.
(e) If the Trust shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Trust may, at its option, in or
pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the
Trust shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier
than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than
eleven months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee, any Security Registrar, any Paying
Agent, any Authenticating Agent or the Trust in reliance thereon,
whether or not notation of such action is made upon such Security.
SECTION 105. Notices, etc., to Trustee and Trust.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Trust shall be sufficient
for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Operations, or
(2) The Trust by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to the Trust
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Trust.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Trust or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered
Securities as shall be made with the approval of the Trustee shall constitute
a sufficient notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise qualified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such
notices shall be sufficiently given if published in an Authorized Newspaper
in The City of New York and in such other city or cities as may be specified
in such Securities, and if the Securities of such series are listed on any
stock exchange outside the United States, in any place at which such
Securities are listed on a securities exchange to the extent that such
securities exchange so requires, on a Business Day, such publication to be
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. Any such notice shall be deemed to
have been given on the date of such publication or, if published more than
once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall
be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to any particular Holder of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of such notice with respect to other Holders of Bearer Securities
or the sufficiency of any notice to Holders of Registered Securities given as
provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Trust shall bind
its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Security or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons appertaining
thereto, express or implied, shall give to any Person, other than the parties
hereto, any Security Registrar, any Paying Agent, any Authenticating Agent
and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. No Personal Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any Security or coupon appertaining thereto,
or because of any indebtedness evidenced thereby, shall be had against any
promoter, as such or, against any past, present or future shareholder,
officer or director, as such, of the Trust or of any successor, either
directly or through the Trust or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment
or by any legal or equitable proceeding or otherwise, all such liability
being expressly waived and released by the acceptance of the Securities by
the Holders thereof and as part of the consideration for the issue of the
Securities.
SECTION 112. Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the law of the Commonwealth of Virginia. This
Indenture is subject to the provisions of the TIA that are required to be
part of this Indenture and shall, to the extent applicable, be governed by
such provisions.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity of any Security
shall not be a Business Day at any Place of Payment, then (notwithstanding
any other provision of this Indenture or any Security or coupon other than a
provision in the Securities of any series which specifically states that such
provision shall apply in lieu hereof), payment of interest or any Additional
Amounts or principal (and premium or Make-Whole Amount, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, Redemption Date, Repayment
Date or sinking fund payment date, or at the Stated Maturity or Maturity,
provided that no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be.
<PAGE>
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, and related coupons of each series, shall be in
substantially the forms as shall be established in or pursuant to one or more
indentures supplemental hereto or Board Resolutions, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Trust may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities or coupons, as
evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the securities of the series designated therein referred
to in the within-mentioned Indenture.
NATIONSBANK OF VIRGINIA, N.A., as Trustee
By _____________________________
Authorized Signatory
<PAGE>
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding clause (8) of
Section 301 and the provisions of Section 302, any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities of such series from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be increased or decreased to
reflect exchanges. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner
and upon instructions given by such Person or Persons as shall be specified
therein or in the Trust Order to be delivered to the Trustee pursuant to
Section 303 or 304. Subject to the provisions of Section 303 and, if
applicable, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Trust Order. If a Trust Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Trust with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Trust and the Trust delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium or Make-Whole Amount and interest on any Security in permanent global
form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Trust, the Trustee and any agent of the Trust
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, Euroclear or CEDEL.
<PAGE>
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions, or indentures
supplemental hereto, prior to the issuance of Securities of any series, any
or all of the following, as applicable (each of which (except for the matters
set forth in clauses (1), (2) and (15) below), if so provided, may be
determined from time to time by the Trust with respect to unissued Securities
of or within the series when issued from time to time):
(1) the title of the Securities of or within the series (which
shall distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of or within the series that may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of or within the series pursuant to Section
304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities of or
within the series shall be payable and the amount of principal payable
thereon;
(4) the rate or rates at which the Securities of or within the
series shall bear interest, if any, or the method by which such rate or
rates shall be determined, the date or dates from which such interest
shall accrue or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest will be
payable and the Regular Record Date, if any, for the interest payable on
any Registered Security on any Interest Payment Date, or the method by
which such date shall be determined, and the basis upon which interest
shall be calculated if other than that of a 360-day year consisting of
twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium or Make-Whole Amount, if any), interest, if any, on, and
Additional Amounts, if any, payable in respect of, Securities of or
within the series shall be payable, any Registered Securities of or
within the series may be surrendered for registration of transfer or
exchange and notices or demands to or upon the Trust in respect of the
Securities of or within the series and this Indenture may be served;
(6) the period or periods within which, the price or prices
(including the premium or Make-Whole Amount, if any) at which, the
currency or currencies, currency unit or units or composite currency or
currencies in which and other terms and conditions upon which Securities
of or within the series may be redeemed in whole or in part, at the
option of the Trust, if the Trust is to have the option;
(7) the obligation, if any, of the Trust to redeem, repay or
purchase Securities of or within the series pursuant to any sinking fund
or analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the price
or prices at which, the currency or currencies, currency unit or units
or composite currency or currencies in which, and other terms and
conditions upon which Securities of or within the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities
of or within the series shall be issuable and, if other than the
denomination of $5,000, the denomination or denominations in which any
Bearer Securities of or within the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of or within the series that shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 502, or the method by which such portion shall be
determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on the Securities of or
within the series shall be payable or in which the Securities of or
within the series shall be denominated;
(12) whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on the Securities of or
within the series may be determined with reference to an index, formula
or other method (which index, formula or method may be based, without
limitation, on one or more currencies, currency units, composite
currencies, commodities, equity indices or other indices), and the
manner in which such amounts shall be determined;
(13) whether the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on the Securities of or
within the series are to be payable, at the election of the Trust or a
Holder thereof, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such
Securities are denominated or stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made, and the time and manner of, and identity of the
exchange rate agent with responsibility for, determining the exchange
rate between the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which such
Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of or within the series upon the occurrence of such events as
may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants of the Trust with respect to Securities
of or within the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(16) whether Securities of or within the series are to be issuable
as Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of or
within the series may be exchanged for Registered Securities of or
within the series and vice versa (if permitted by applicable laws and
regulations), whether any Securities of or within the series are to be
issuable initially in temporary global form and whether any Securities
of or within the series are to be issuable in permanent global form
(with or without coupons) and, if so, whether beneficial owners of
interests in any such permanent global Security may exchange such
interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in
Section 305, and, if Registered Securities of or within the series are
to be issuable as a global Security, the identity of the depositary for
such series;
(17) the date as of which any Bearer Securities of or within the
series and any temporary global Security representing Outstanding
Securities of or within the series shall be dated if other than the date
of original issuance of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of or within the series and any provisions in modification
of, in addition to or in lieu of any of the provisions of Article
Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(21) if the Securities of or within the series are to be issued
upon the exercise of debt warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(22) whether and under what circumstances the Trust will pay
Additional Amounts as contemplated by Section 1011 on the Securities of
or within the series to any Holder who is not a United States person
(including any modification to the definition of such term) in respect
of any tax, assessment or governmental charge and, if so, whether the
Trust will have the option to redeem such Securities rather than pay
such Additional Amounts (and the terms of any such option);
(23) the obligation, if any, of the Trust to permit the conversion
of the Securities of such series into shares of Capital Stock of the
Trust and the terms and conditions upon which such conversion shall be
effected (including, without limitation, the initial conversion price or
rate, the conversion period, any adjustment of the applicable conversion
price or rate and any requirements relative to the reservation of such
shares for purposes of conversion); and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered or Bearer Securities issued in global form,
as to denomination and except as may otherwise be provided in or pursuant to
such Board Resolution or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and unless
otherwise provided, a series may be reopened, without the consent of the
Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions or supplemental
indentures, a copy of an appropriate record of such action(s) shall be
certified by the Secretary or an Assistant Secretary of the Trust and
delivered to the Trustee at or prior to the delivery of the Trust Order for
authentication and delivery of such Securities.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 301. With respect to
Securities of any series denominated in Dollars, in the absence of any such
provisions with respect to the Securities of any series, the Registered
Securities of such series, other than Registered Securities issued in global
form (which may be of any denomination), shall be issuable in denominations
of $1,000 and any integral multiple thereof and the Bearer Securities of such
series other than Bearer Securities issued in global form (which may be of
any denomination), shall be issuable in denominations of $5,000.
SECTION 303. Execution, Authentication Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on
behalf of the Trust by its President or a Vice President, under its corporate
seal reproduced thereon, and attested by its Secretary or an Assistant
Secretary. The signature of any of these officers on the Securities and
coupons may be manual or facsimile signatures of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities or coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers
of the Trust shall bind the Trust, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Trust may deliver Securities of any series, together with
any coupon appertaining thereto, executed by the Trust to the Trustee for
authentication, together with a Trust Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Trust
Order shall authenticate and deliver such Securities; provided, however,
that, in connection with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United States; and
provided further that, unless otherwise specified with respect to any series
of Securities pursuant to Section 301 a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have furnished a certificate to Euroclear or
CEDEL, as the case may be, in the form set forth in Exhibit A-1 to this
Indenture or such other certificate as may be specified with respect to any
series of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered
and the date on which any temporary Security first becomes exchangeable for
such Bearer Security in accordance with the terms of such temporary Security
and this Indenture. Except as permitted by Section 306, the Trustee shall
not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled.
If all of the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such
series shall so permit, such Trust Order may set forth procedures acceptable
to the Trustee for the issuance of such Securities and determining the terms
of particular Securities of such series, such as interest rate or formula,
maturity date, date of issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Section 315(a)
through 315(d)) shall be fully protected in relying upon:
(i) an Opinion of Counsel complying with Section 102 and stating
that:
(a) the form or forms of such Securities and any coupons have
been, or will have been upon compliance with such procedures as may
be specified therein, established in conformity with the provisions
of this Indenture;
(b) the terms of such Securities and any coupons have been,
or will have been upon compliance with such procedures as may be
specified therein, established in conformity with the provisions of
this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed pursuant to such procedures as may be
specified therein, and executed and delivered by the Trust to the
Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this
Indenture and issued by the Trust in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
legal, valid and binding obligations of the Trust, enforceable in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of
creditors' rights generally and to general equitable principles and
to such other matters as may be specified therein; and
(ii) an Officers' Certificate complying with Section 102 and
stating that all conditions precedent provided for in this Indenture
relating to the issuance of such Securities have been, or will have been
upon compliance with such procedures as may be specified therein,
complied with and that, to the best of the knowledge of the signers of
such certificate, no Event of Default with respect to such Securities
shall have occurred and be continuing.
The Trustee shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect the Trustee's
own rights, duties, obligations or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver a Trust Order, an Opinion of
Counsel or an Officers' Certificate otherwise required pursuant to the
preceding paragraph at the time of issuance of each Security of such series,
but such order, opinion and certificate, with appropriate modifications to
cover such future issuances, shall be delivered at or before the time of
issuance of the first Security of such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security or the Security to which such coupon
appertains a certificate of authentication substantially in the form provided
for herein duly executed by the Trustee by manual signature of an authorized
officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated
and delivered hereunder but never issued and sold by the Trust, and the Trust
shall deliver such Security to the Trustee for cancellation as provided in
Section 309 together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued or sold by the Trust, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any
series, the Trust may execute, and upon Trust Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination; substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, or, if
authorized, in bearer form with one or more coupons or without coupons,
and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. In the
case of Securities of any series, such temporary Securities may be in
global form.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with Section 304(b) or as otherwise
provided in or pursuant to a Board Resolution), if temporary Securities
of any series are issued, the Trust will cause definitive Securities of
that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of
such series at the office or agency of the Trust in a Place of Payment
for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Trust
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same
series of authorized denominations; provided, however, that no
definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that a definitive
Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section
303. Until so exchanged, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
(b) Unless otherwise provided as contemplated in Section 301, this
Section 304(b) shall govern the exchange of temporary Securities issued
in global form other than through the facilities of DTC. If any such
temporary Security is issued in global form, then such temporary global
Security shall, unless otherwise provided therein, be delivered to the
London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euroclear and CEDEL.
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Trust shall deliver to the Trustee
definitive Securities, in an aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Trust.
On or after the Exchange Date, such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the Trust's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of or within the
same series of authorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged. The definitive Securities to
be delivered in exchange for any such temporary global Security shall be in
bearer form, registered form, permanent global bearer form or permanent
global registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified,
as requested by the beneficial owner thereof, provided, however, that, unless
otherwise specified in such temporary global Security, upon such presentation
by the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euroclear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form
set forth in Exhibit A-2 to this Indenture or in such other form as may be
established pursuant to Section 301; and provided further that definitive
Bearer Securities shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same
series and of like tenor following the Exchange Date when the account holder
instructs Euroclear or CEDEL, as the case may be, to request such exchange on
his behalf and delivers to Euroclear or CEDEL, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in
such other form as may be established pursuant to Section 301), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any
such exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the
like unless such Person takes delivery of such definitive Securities in
person at the offices of Euroclear or CEDEL. Definitive Securities in bearer
form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series and
of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest payable on a
temporary global Security on an Interest Payment Date for Securities of such
series occurring prior to the applicable Exchange Date shall be payable to
Euroclear and CEDEL on such Interest Payment Date upon delivery by Euroclear
and CEDEL to the Trustee of a certificate or certificates in the form set
forth in Exhibit A-2 to this Indenture (or in such other forms as may be
established pursuant to Section 301), for credit without further interest on
or after such Interest Payment Date to the respective accounts of Persons who
are the beneficial owners of such temporary global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL, as the case
may be, a certificate dated no earlier than 15 days prior to the Interest
Payment Date occurring prior to such Exchange Date in the form set forth as
Exhibit A-1 to this Indenture (or in such other forms as may be established
pursuant to Section 301). Notwithstanding anything to the contrary herein
contained, the certifications made pursuant to this paragraph shall satisfy
the certification requirements of the preceding two paragraphs of this
Section 304(b) and of the third paragraph of Section 303 of this Indenture
and the interests of the Persons who are the beneficial owners of the
temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like
tenor on the Exchange Date or the date of certification if such date occurs
after the Exchange Date, without further act or deed by such beneficial
owners. Except as otherwise provided in this paragraph, no payments of
principal or interest owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and CEDEL and not
paid as herein provided shall be returned to the Trustee prior to the
expiration of two years after such Interest Payment Date in order to be
repaid to the Trust.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Trust shall cause to be kept at the Corporate Trust Operations
Office of the Trustee or in any office or agency of the Trust in a Place of
Payment a register for each series of Securities (the registers maintained in
such office or in any such office or agency of the Trust in a Place of
Payment being herein sometimes referred to collectively as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Trust shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Security Register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. The Trustee, at its Corporate Trust
Operations Office, is hereby initially appointed "Security Registrar" for the
purpose of registering Registered Securities and transfers of Registered
Securities on such Security Register as herein provided. In the event that
the Trustee shall cease to be Security Registrar, it shall have the right to
examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any
office or agency of the Trust in a Place of Payment for that series, the
Trust shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount, being a number not contemporaneously outstanding,
and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered
Securities are so surrendered for exchange, the Trust shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive. Unless otherwise
specified with respect to any series of Securities as contemplated by Section
301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) permitted as contemplated by Section 301, at the option
of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the
Holder of a Bearer Security is unable to produce any such unmatured coupon or
coupons or matured coupon or coupons in default, any such permitted exchange
may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Trust in an amount equal to the face amount of such missing
coupon or coupons, or the surrender of such missing coupon or coupons may be
waived by the Trust and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case a Bearer Security of
any series is surrendered at any such office or agency in a permitted
exchange for a Registered Security of the same series and like tenor after
the close of business at such office or agency on (i) any Regular Record Date
and before the Opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment
of Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be, and interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Trust shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depositary for any
permanent global Security is DTC, then, unless the terms of such global
Security expressly permit such global Security to be exchanged in whole or in
part for definitive Securities, a global Security may be transferred, in
whole but not in part, only to a nominee of DTC, or by a nominee of DTC to
DTC, or to a successor to DTC for such global Security selected and approved
by the Trust or to a nominee of such successor to DTC. If at any time DTC
notifies the Trust that it is unwilling or unable to continue as depositary
for the applicable global Security or Securities or if at any time DTC ceases
to be a clearing agency registered under the Exchange Act if so required by
applicable law or regulation, the Trust shall appoint a successor depositary
with respect to such global Security or Securities. If (x) a successor
depositary for such global Security or Securities is not appointed by the
Trust within 90 days after the Trust receives such notice or becomes aware of
such unwillingness, inability or ineligibility, (y) an Event of Default has
occurred and is continuing and the beneficial owners representing a majority
in principal amount of the applicable series of Securities represented by
such global Security or Securities advise DTC to cease acting as depositary
for such global Security or Securities or (z) the Trust, in its sole
discretion, determines at any time that all Outstanding Securities (but not
less than all) Securities of any series issued or issuable in the form of one
or more global Securities shall no longer be represented by such global
Security or Securities (provided, however, the Trust may not make such
determination during the 40-day restricted period provided by Regulation S
under the Securities Act or during any other similar period during which the
Securities must be held in global form as may be required by the Securities
Act), then the Trust shall execute, and the Trustee shall authenticate and
deliver definitive Securities of like series, rank, tenor and terms in
definitive form in an aggregate principal amount equal to the principal
amount of such global Security or Securities. If any beneficial owner of an
interest in a permanent global Security is otherwise entitled to exchange
such interest for Securities of such series and of like tenor and principal
amount of another authorized form and denomination, as specified as
contemplated by Section 301 and provided that any applicable notice provided
in the permanent global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Trust shall execute, and the Trustee
shall authenticate and deliver definitive Securities in aggregate principal
amount equal to the principal amount of such beneficial owner's interest in
such permanent global Security. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered for exchange by DTC or such other depositary as shall be
specified in the Trust Order with respect thereto to the Trustee, as the
Trust's agent for such purpose; provided, however, that no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those
selected for redemption; and provided further that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent
global Security after the close of business at the office or agency where
such exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
in respect of such Registered Security, but will be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Trust, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Security Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Trust may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Trust or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may
be among those selected for redemption during a period beginning at the
opening of business 15 days before selection of the Securities to be redeemed
under Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption and (B) if such Securities are issuable
as Bearer Securities, the day of the first publication of the relevant notice
of redemption or, if such Securities are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except, in the case
of any Registered Security to be redeemed in part, the portion thereof not to
be redeemed, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor; provided that such
Registered Security shall be simultaneously surrendered for redemption, or
(iv) to issue, register the transfer of or exchange any Security which has
been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Trust, together with,
in proper cases, such security or indemnity as may be required by the Trust
or the Trustee to save each of them or any agent of either of them harmless,
the Trust shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Trust and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of actual notice to the Trust or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Trust shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or
to the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become
or is about to become due and payable, the Trust in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons,
if any, appertaining to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen coupon appertains, pay such
Security or coupon; provided, however, that payment of principal of (and
premium or Make-Whole Amount, if any), any interest on and any Additional
Amounts with respect to, Bearer Securities shall, except as otherwise
provided in Section 1002, be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated by
Section 301, any interest on Bearer Securities shall be payable only upon
presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Trust may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Trust, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of
that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, interest on any Registered
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency
of the Trust maintained for such purpose pursuant to Section 1002; provided,
however, that each installment of interest on any Registered Security may at
the Trust's option be paid by (i) mailing a check for such interest, payable
to or upon the written order of the Person entitled thereto pursuant to
Section 308, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee located
inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by transfer to an account maintained by the payee with a
bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the
case may be, with respect to that portion of such permanent global Security
held for its account by Cede & Co. or the Common Depositary, as the case may
be, for the purpose of permitting such party to credit the interest received
by it in respect of such permanent global Security to the accounts of the
beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any Regular Record
Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder
thereof on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Trust, at its election
in each case, as provided in clause (1) or (2) below:
(1) The Trust may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Trust shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Registered Security of such series and the
date of the proposed payment (which shall not be less than 20 days after
such notice is received by the Trustee), and at the same time the Trust
shall deposit with the Trustee an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series)
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Trust of
such Special Record Date and, in the name and at the expense of the
Trust, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Registered Securities of such series
at his address as it appears in the Security Register not less than 10
days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Trust, cause a similar
notice to be published at least once in an Authorized Newspaper in each
place of payment, but such publications shall not be a condition
precedent to the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer
be payable pursuant to the following clause (2). In case a Bearer
Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such
series after the close of business at such office or agency on any
Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to
such proposed date of payment and Defaulted Interest will not be payable
on such proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to
the Holder of such coupon when due in accordance with the provisions of
this Indenture.
(2) The Trust may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Trust to the Trustee of
the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Trust, the Trustee and any agent of the Trust or the Trustee
may treat the Person in whose name such Registered Security is registered as
the owner of such Security for the purpose of receiving payment of principal
of (and premium or Make-Whole Amount, if any), and (subject to Sections 305
and 307) interest on, such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither
the Trust, the Trustee nor any agent of the Trust or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Trust, the Trustee and any agent of the Trust or the
Trustee may treat the Holder of any Bearer Security and the Holder of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither
the Trust, the Trustee nor any agent of the Trust or the Trustee shall be
affected by notice to the contrary.
None of the Trust, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Trust, the Trustee, or any agent of the
Trust or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect
to such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange
or for credit against any sinking find payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and any such
Securities and coupons and Securities and coupons surrendered directly to the
Trustee for any such purpose shall be promptly cancelled by it. The Trust
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Trust may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Trust has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee.
If the Trust shall so acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture.
Cancelled Securities and coupons held by the Trustee shall be destroyed by
the Trustee and the Trustee shall deliver a certificate of such destruction
to the Trust, unless by a Trust Order the Trust directs their return to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 with
respect to Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year consisting of twelve
30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Trust Request cease to be of further effect
with respect to any series of Securities specified in such Trust Request
(except as to any surviving rights of registration of transfer or exchange of
Securities of such series herein expressly provided for and any right to
receive Additional Amounts, as provided in Section 1011), and the Trustee,
upon receipt of a Trust Order, and at the expense of the Trust, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
as to such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such
exchange, whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and coupons of such series
which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption and maturing after
the relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of such
series for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Trust and thereafter
repaid to the Trust for discharge from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation;
or
(B) all Securities of such series and, in the case of (i) and
(ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Trust, are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Trust,
and the Trust, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount in the currency or
currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the
Trustee for cancellation, for principal (and premium or Make-Whole
Amount, if any) and interest, and any Additional Amounts with
respect thereto, to the date of such deposit (in the case of
Securities which have become due and payable) or the Stated
Maturity or Redemption Date, as the case may be;
(2) The Trust has paid or caused to be paid all other sums payable
hereunder by the Trust; and
(3) The Trust has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Trust to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Trust to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the
Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of
Section 1003, shall survive.
SECTION 402. Application of Trust Funds.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities,
the coupons and this Indenture, to the payment, either directly or through
any Paying Agent (including the Trust acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium or Make-Whole Amount, if any), and any interest and Additional
Amounts for whose payment such money has been deposited with or received by
the Trustee, but such money need not be segregated from other funds except to
the extent required by law.
<PAGE>
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Subject to any modifications, additions or deletions relating to any
series of Securities as contemplated pursuant to Section 301, "Event of
Default," wherever used herein with respect to any particular series of
Securities, means any one of the following events (whatever the reason for
such Event of Default and whether or not it shall be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of or within that series or
of any coupon appertaining thereto, when such interest, Additional
Amounts or coupon becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of that series when due and
payable at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Trust in this Indenture with respect to any Security of
that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of
60 days after there has been given, by registered or certified mail, to
the Trust by the Trustee or to the Trust and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) default under any bond, debenture, note, mortgage, indenture
or instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness of the Trust for money borrowed by
the Trust (or by any Subsidiary, the repayment of which the Trust has
guaranteed or for which the Trust is directly responsible or liable as
obligor or guarantor), having an aggregate principal amount outstanding
of at least $10,000,000, whether such indebtedness now exists or shall
hereafter be created, which default shall have resulted in such
indebtedness being declared due and payable prior to the date on which
it would otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration having been
rescinded or annulled, within a period of 10 days after there shall have
been given, by registered or certified mail, to the Trust by the Trustee
or to the Trust and the Trustee by the Holders of at least 10% in
principal amount of the Outstanding Securities of that series a written
notice specifying such default and requiring the Trust to cause such
indebtedness to be discharged or cause such acceleration to be rescinded
or annulled and stating that such notice is a "Notice of Default"
hereunder; or
(6) the entry by a court of competent jurisdiction of one or more
judgments, orders or decrees against the Trust or any of its
Subsidiaries in an aggregate amount (excluding amounts covered by
insurance) in excess of $10,000,000 and such judgments, orders or
decrees remain undischarged, unstayed and unsatisfied in an aggregate
amount (excluding amounts covered by insurance) in excess of $10,000,000
for a period of 30 consecutive days; or
(7) the Trust or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Trust or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Trust or any Significant
Subsidiary or for all or substantially all of either of its
property, or
(C) orders the liquidation of the Trust or any Significant
Subsidiary
and the order or decree remains unstayed and in effect for 90 days; or
(9) any other Event of Default provided with respect to Securities
of that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11, U.S.
Code or any similar Federal or state law for the relief of debtors and the
term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of, and
the Make-Whole Amount, if any, on, all the Securities of that series to be
due and payable immediately, by a notice in writing to the Trust (and to the
Trustee if given by the Holders), and upon any such declaration such
principal or specified portion thereof shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Trust and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) The Trust has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency
in which the Securities of such series is payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Outstanding Securities
of that series and any related coupons;
(B) the principal of (and premium or Make-Whole Amount, if
any, on) any Outstanding Securities of that series which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates borne by or provided for in
such Securities;
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and any Additional
Amounts at the rate or rates borne by or provided for in such
Securities; and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium or
Make-Whole Amount, if any) or interest on Securities of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Trust covenants that if:
(1) default is made in the payment of any installment of interest
or Additional Amounts, if any, on any Security of any series and any
related coupon when such interest or Additional Amount becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium
or Make-Whole Amount, if any, on) any Security of any series at its
Maturity,
then the Trust will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the
whole amount then due and payable on such Securities and coupons for
principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amount, with interest upon any overdue principal (and premium or
Make-Whole Amount, if any) and, to the extent that payment of such interest
shall be legally enforceable, upon any overdue installments of interest or
Additional Amounts, if any, at the rate or rates borne by or provided for in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Trust fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the
same against the Trust or any other obligor upon such Securities of such
series and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Trust or any other obligor upon
such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Trust or any other obligor upon the
Securities or the property of the Trust or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Trust for the payment of overdue principal,
premium or Make-Whole Amount, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of
principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim, for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allotted in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized
by each Holder of Securities of such series and coupons to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee and any predecessor Trustee, their agents and
counsel, and any other amounts due the Trustee or any predecessor Trustee
under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium or Make-Whole Amount, if any) or interest and any Additional Amounts,
upon presentation of the Securities or coupons, or both, as the case may be,
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606,
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium or Make-Whole Amount,
if any) and interest and any Additional Amounts payable, in respect of
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and coupons for
principal (and premium or Make-Whole Amount, if any), interest and
Additional Amounts, respectively, and
THIRD: To the payment of the remainder, if any, to the Trust.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupon shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, if any, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium or Make-Whole Amount, if
any) and (subject to Sections 305 and 307) interest on, and any Additional
Amounts in respect of, such Security or payment of such coupon on the
respective due dates expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the
consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Trust, the Trustee and the Holders of Securities and coupons shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised
front time to time, and as often as may be deemed expedient, by the Trustee
or by the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities
of such series not joining therein (but the Trustee shall have no
obligation as to the determination of such undue prejudice).
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on or Additional Amounts payable in respect
of any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws.
The Trust covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Trust (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of any undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on or Additional Amounts payable with respect to
any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
<PAGE>
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such
default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in
the payment of the principal of (or premium or Make-Whole Amount, if any) or
interest on or any Additional Amounts with respect to any Security of such
series, or in the payment of any sinking fund installment with respect to the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the
Holders of the Securities and coupons of such series; and provided further
that in the case of any default or breach of the character specified in
Section 501(4) with respect to the Securities and coupons of such series, no
such notice to Holders shall be given until at least 60 days after the
occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Section 315(a) through 315(d):
(1) the Trustee shall perform only such duties as are expressly
undertaken by it to perform under this Indenture;
(2) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party
or parties;
(3) any request or direction of the Trust mentioned herein shall
be sufficiently evidenced by a Trust Request or Trust Order (other than
delivery of any Security, together with any coupons appertaining
thereto, to the Trustee for authentication and delivery pursuant to
Section 303 which shall be sufficiently evidenced as provided therein)
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(4) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(5) the Trustee may consult with counsel and as a condition to the
taking, suffering or omission of any action hereunder may demand an
Opinion of Counsel, and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(6) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(7) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine the books, records and premises of the
Trust, personally or by agent or attorney;
(8) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder; and
(9) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
SECTION 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Trust, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Trust of Securities or the proceeds thereof.
SECTION 604. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar, Authenticating Agent
or any other agent of the Trust, in its individual or any other capacity, may
become the owner or pledgee of Securities and coupons and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Trust with the same
rights it would have if it were not Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on, or investment of, any money received by it
hereunder.
SECTION 606. Compensation and Reimbursement.
The Trust agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder, including
extraordinary services rendered in connection with or during the
continuation of a default hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by it
in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except to the extent any such expense, disbursement or
advance may be attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense,
arising out of or in connection with the acceptance or administration of
the trust or trusts or the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder except to the extent any such loss,
liability or expense may be attributable to its own negligence or bad
faith.
As security for the performance of the obligations of the Trust under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (or premium or Make-Whole
Amount, if any) or interest on particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests.
There shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $25,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements
of Federal, State, Territorial or District of Columbia supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Trust. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered
to the Trustee and to the Trust.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Trust or
by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
607(a) and shall fail to resign after written request therefor by
the Trust or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Trust by or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee with
respect to all Securities, or (ii) subject to TIA Section 315(e), any
Holder of a Security who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause with respect to the Securities of one or more series, the Trust,
by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect
to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered
to the Trust and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by
the Trust. If no successor Trustee with respect to the Securities of
any series shall have been so appointed by the Trust or the Holders of
Securities and accepted appointment in the manner hereinafter provided,
any Holder of a Security who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to Securities of
such series.
(f) The Trust shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series in the manner provided for notices to the Holders of
Securities in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee shall
execute, acknowledge and deliver to the Trust and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of
the retiring Trustee; but, on request of the Trust or the successor
Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder, subject nevertheless
to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Trust, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an
indenture supplemental hereto, pursuant to Article Nine hereof, wherein
each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any trust
or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent
provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Trust or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities or coupons
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities or coupons so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities or coupons. In
case any Securities or coupons shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate and deliver
such Securities or coupons, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more
series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption or repayment thereof, and
Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Trust.
Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a
certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Trust and, except as may otherwise be provided pursuant to Section 301, shall
at all times be a bank or trust company or corporation organized and doing
business and in good standing under the laws of the United States of America
or of any State or the District of Columbia, authorized under such laws to
act as Authenticating Agent, having a combined capital and surplus of not
less than $25,000,000 and subject to supervision or examination by Federal or
State authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Trust. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Trust. Upon receiving
such a notice of resignation or upon such a termination, or in case at any
time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee for such series may appoint a
successor Authenticating Agent which shall be acceptable to the Trust and
shall give notice of such appointment to all Holders of Securities of or
within the series with respect to which such Authenticating Agent will serve
in the manner set forth in Section 106. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless eligible under the provisions
of this Section.
The Trust agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
NATIONSBANK OF VIRGINIA, N.A.,
as Trustee
By: ___________________________
as Authenticating Agent
By: ___________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Trust and the Trustee that neither the Trust nor the
Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under TIA
Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after April 1 of each year commencing with the first
April 1 after the first issuance of Securities pursuant to this Indenture,
the Trustee shall transmit by mail to all Holders of Securities as provided
in TIA Section 313(c) a brief report dated as of such April 1 if required by
TIA Section 313(a).
SECTION 703. Reports by Trust.
The Trust will:
(1) file with the Trustee, within 15 days after the Trust is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Trust may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Trust is not required to file
information, documents or reports pursuant to either of such Sections,
then it will file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Trust with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the
extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Trust
pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
SECTION 704. Trust to Furnish Trustee Names and Addresses of Holders.
The Trust will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Registered Securities of such series as of such Regular
Record Date, or if there is no Regular Record Date for interest for such
series of Securities, semi-annually, upon such dates as are set forth in
the Board Resolution or indenture supplemental hereto authorizing such
series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Trust of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished,
provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Trust and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions.
The Trust may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other Person,
provided that in any such case, (i) either the Trust shall be the continuing
entity, or the successor (if other than the Trust) entity shall be a Person
organized and existing under the laws of the United States or a State thereof
and such successor entity shall expressly assume the due and punctual payment
of the principal of (and premium or Make-Whole Amount, if any) and any
interest (including all Additional Amounts, if any, payable pursuant to
Section 1011) on all of the Securities, according to their tenor, and the due
and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Trust by supplemental
indenture, complying with Article Nine hereof, satisfactory to the Trustee,
executed and delivered to the Trustee by such Person and (ii) immediately
after giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Trust or any Subsidiary as a result thereof as
having been incurred by the Trust or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or the
lapse of time, or both, would become an Event of Default, shall have occurred
and be continuing.
SECTION 802. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, lease or conveyance and
upon any such assumption by the successor entity, such successor entity shall
succeed to and be substituted for the Trust, with the same effect as if it
had been named herein as the party of the first part, and the predecessor
entity, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor entity
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Trust, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Trust and delivered to the
Trustee; and, upon the order of such successor entity, instead of the Trust,
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the officers of the
Trust to the Trustee for authentication, and any Securities which such
successor entity thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in
the Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel.
Any consolidation, merger, sale, lease or conveyance permitted under
Section 801 is also subject to the condition that the Trustee receive an
Officers' Certificate and an Opinion of Counsel to the effect that any such
consolidation, merger, sale, lease or conveyance, and the assumption by any
successor entity, complies with the provisions of this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
<PAGE>
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Trust,
when authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the Trust and
the assumption by any such successor of the covenants of the Trust
herein and in the Securities contained; or
(2) to add to the covenants of the Trust for the benefit of the
Holders of all or any series of Securities (and, if such covenants are
to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred upon
the Trust; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are expressly being included solely
for the benefit of such series); provided, however, that in respect of
any such additional Events of Default such supplemental indenture may
provide for a particular period of grace after default (which period may
be shorter or longer than that allowed in the case of other defaults) or
may provide for an immediate enforcement upon such default or may limit
the remedies available to the Trustee upon such default or may limit the
right of the Holders of a majority in aggregate principal amount of that
or those series of Securities to which such additional Events of Default
apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or
any premium, Make-Whole Amount or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided
that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture or to make any other changes,
provided that in each case, such provisions shall not adversely affect
the interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(10) to close this Indenture with respect to the authentication and
delivery of additional series of Securities or to qualify, or maintain
qualification of, this Indenture under the TIA; or
(11) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided in each case that any such action shall not adversely
affect the interests of the Holders of Securities of such series and any
related coupons or any other series of Securities in any material
respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of all Outstanding Securities affected by such supplemental indenture,
by Act of said Holders delivered to the Trust and the Trustee, the Trust,
when authorized by or pursuant to a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities and any related coupons under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of
the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium or
Make-Whole Amount, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount thereof or the
rate or amount of interest thereon or any Additional Amounts payable in
respect thereof, or any premium or Make-Whole Amount payable upon the
redemption thereof, or change any obligation of the Trust to pay
Additional Amounts pursuant to Section 1011 (except as contemplated by
Section 801(1) and permitted by Section 901(1)), or reduce the amount of
the principal of an Original Issue Discount Security or Make-Whole
Amount, if any, that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504; or
adversely affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the currency or
currencies, currency unit or units or composite currency or currencies
in which, the principal of any Security or any premium or Make-Whole
Amount or any Additional Amounts payable in respect thereof or the
interest thereon is payable; or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption or repayment at the option of the
Holder, on or after the Redemption Date or the Repayment Date, as the
case may be); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver with respect to such series (or compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting; or
(3) modify any of the provisions of this Section, Section 513 or
Section 1012, except to increase the required percentage to effect such
action or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture and that all conditions precedent to the
execution of such supplemental indenture have been complied with. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustees own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder and of any coupon appertaining thereto shall be bound
thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall, if
required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Trust
shall so determine, new Securities of any series so modified as to conform,
in the opinion of the Trustee and the Trust, to any such supplemental
indenture may be prepared and executed by the Trust and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such
series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Trust and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Trust
shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, if
any, Interest and Additional Amounts.
The Trust covenants and agrees for the benefit of the Holders of each
series of Securities that it will duly and punctually pay the principal of
(and premium or Make-Whole Amount, if any) and interest on and any Additional
Amounts payable in respect of the Securities of that series in accordance
with the terms of such series of Securities, any coupons appertaining thereto
and this Indenture. Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, any interest due on and any
Additional Amounts payable in respect of Bearer Securities on or before
Maturity, other than Additional Amounts, if any, payable as provided in
Section 1011 in respect of principal of (or premium or Make-Whole Amount, if
any, on) such a Security, shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. Unless otherwise specified with
respect to Securities of any series pursuant to Section 301, at the option of
the Trust, all payments of principal may be paid by check to the registered
Holder of the Registered Security or other person entitled thereto against
surrender of such Security.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities,
the Trust shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trust in respect of the Securities of that series and
this Indenture may be served, provided, however, that such functions of such
office or agency may be allocated among the Corporate Trust and Corporate
Trust Operations Offices of the Trustee and any other office of the Trustee
which becomes a Place of Payment pursuant to this Section. If Securities of
a series are issuable as Bearer Securities, the Trust will maintain: (A) in
the Borough of Manhattan, The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered
for exchange, where notices and demands to or upon the Trust in respect of
the Securities of that series and this Indenture may be served and where
Bearer Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise); (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that
series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 1011); provided, however, that if the Securities
of that series are listed on the Luxembourg Stock Exchange, The International
Stock Exchange or any other stock exchange located outside the United States
and such stock exchange shall so require, the Trust will maintain a Paying
Agent for the Securities of that series in Luxembourg, London or any other
required city located outside the United States, as the case may be, so long
as the Securities of that series are listed in such exchange; and (C) subject
to any laws or regulations applicable thereto, in a Place of Payment for that
series located outside the United States an office or agency where any
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange and where
notices and demands to or upon the Trust in respect of the Securities of that
series and this Indenture may be served. The Trust will give prompt written
notice to the Trustee of the location, and any change in the location, of
each such office or agency. If at any time the Trust shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations and surrenders may be made or served
at the Corporate Trust Operations Office of the Trustee and such notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Bearer Securities of that series pursuant to Section 1011)
at the offices specified in the Security, in London, England, and the Trust
hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands, and the Trust hereby appoints
the Trustee its agent to receive all such presentations, surrenders, notices
and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium, Make-Whole Amount or interest
on or Additional Amounts in respect of Bearer Securities shall be made at any
office or agency of the Trust in the United States or by check mailed to any
address in the United States or by transfer to an account maintained with a
bank located in the United States; provided, however, that, if the Securities
of a series are payable in Dollars, payment of principal of and any premium
and interest on any Bearer Security (including any Additional Amounts or
Make-Whole Amount payable on Securities of such series pursuant to Section
1011) shall be made at the office of the Trust's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment in Dollars of
the full amount of such principal, premium, interest, Additional Amounts or
Make-Whole Amount, as the case may be, at all offices or agencies outside the
United States maintained for the purpose by the Trust in accordance with this
Indenture, is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Trust may from time to time designate one or more other offices or
agencies where the Securities of one or more series and related coupons, if
any, may be presented or surrendered for any or all of such purposes, and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Trust of its
obligation to maintain an office or agency in accordance with the
requirements set forth above for Securities of any series for such purposes.
The Trust will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency. Unless otherwise specified with respect to any Securities
pursuant to Section 301 with respect to a series of Securities, the Trust
hereby designates as Places of Payment for each series of Securities the
Corporate Trust Operations Office of the Trustee and the office or agency of
Midwest Clearing Corporation at 40 Broad Street, 22d Floor, New York, New
York 10004, in the Borough of Manhattan, The City of New York, initially
appoints the Trustee as a Paying Agent in Atlanta, Georgia, and Midwest
Clearing Corporation as Paying Agent in the Borough of Manhattan, The City of
New York, and appoints each as its agent to receive all such presentations,
surrenders, notices and demands; provided, however, that the designation of
the office or agency of Midwest Clearing Corporation as a Place of Payment
and the appointment of Midwest Clearing Corporation as a Paying Agent shall
terminate effective upon the establishment by the Trustee of an office in the
Borough of Manhattan, The City of New York, at which its trust business shall
be conducted, at which time such office of the Trustee shall be deemed
designated as a Place of Payment and the Trustee shall be deemed appointed a
Paying Agent in the Borough of Manhattan, The City of New York.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign
Currency, or so long as it is required under any other provision of the
Indenture, then the Trust will maintain with respect to each such series of
Securities, or as so required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Trust shall at any time act as its own Paying Agent with respect
to any series of any Securities and any related coupons, it will, on or
before each due date of the principal of (and premium or Make-Whole Amount,
if any), or interest on or Additional Amounts in respect of, any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) sufficient to pay the principal (and premium
or Make-Whole Amount, if any) or interest or Additional Amounts so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Trust shall have one or more Paying Agents for any series
of Securities and any related coupons, it will, on or before each due date of
the principal of (and premium or Make-Whole Amount, if any), or interest on
or Additional Amounts in respect of, any Securities of that series, deposit
with a Paying Agent a sum (in the currency or currencies, currency unit or
units or composite currency or currencies described in the preceding
paragraph) sufficient to pay the principal (and premium or Make-Whole Amount,
if any) or interest or Additional Amounts, so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal,
premium, Make-Whole Amount or interest or Additional Amounts and (unless such
Paying Agent is the Trustee) the Trust will promptly notify the Trustee of
its action or failure so to act.
The Trust will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall
agree with the Trustee, subject to the provisions of this Section, that such
Paying Agent will
(1) hold all sums held by it for the payment of principal of (and
premium or Make-Whole Amount, if any) or interest on Securities in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Trust (or any
other obligor upon the Securities) in the making of any such payment of
principal (and premium or Make-Whole Amount, if any) or interest; and
(3) at any time during the continuance of any such default upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Trust may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Trust
Order direct any Paying Agent to pay, to the Trustee all sums held in trust
by the Trust or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Trust or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Trust, in
trust for the payment of the principal of (and premium or Make-Whole Amount,
if any) or interest on, or any Additional Amounts in respect of, any Security
of any series and remaining unclaimed for two years after such principal (and
premiums or Make-Whole Amount, if any), interest or Additional Amounts has
become due and payable shall be paid to the Trust upon Trust Request or (if
then held by the Trust) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general creditor, look
only to the Trust for payment of such principal of (and premium or Make-Whole
Amount, if any) or interest on, or any Additional Amounts in respect of, any
Security, without interest thereon, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Trust
as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Trust cause to be published once, in an
Authorized Newspaper, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Trust.
SECTION 1004. Limitations on Incurrence of Debt.
(a) The Trust will not, and will not permit any Subsidiary to,
incur any Debt if, immediately after giving effect to the incurrence of
such additional Debt and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Debt of the Trust and its
Subsidiaries on a consolidated basis determined in accordance with GAAP
is greater than 60% of the sum of (without duplication) (i) the Trust's
Total Assets as of the end of the calendar quarter covered in the
Trust's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as
the case may be, most recently filed with the Commission (or, if such
filing is not permitted under the Exchange Act, with the Trustee) prior
to the incurrence of such additional Debt and (ii) the purchase price of
any real estate assets or mortgages receivable acquired, and the amount
of any securities offering proceeds received (to the extent such
proceeds were not used to acquire real estate assets or mortgages
receivable or used to reduce Debt), by the Trust or any Subsidiary since
the end of such calendar quarter, including those proceeds obtained in
connection with the incurrence of such additional Debt;
(b) In addition to the limitations set forth in subsection (a) of
this Section 1004, the Trust will not, and will not permit any
Subsidiary to, incur any Debt if the ratio of Consolidated Income
Available for Debt Service to the Annual Service Charge for the four
consecutive fiscal quarters most recently ended prior the date on which
such additional Debt is to be incurred shall have been less than 1.5, on
a pro forma basis after giving effect thereto and to the application of
the proceeds therefrom, and calculated on the assumption that (i) such
Debt and any other Debt incurred by the Trust and its Subsidiaries since
the first day of such four-quarter period and the application of the
proceeds therefrom, including to refinance other Debt, had occurred at
the beginning of such period; (ii) the repayment or retirement of any
other Debt by the Trust and its Subsidiaries since the first day of such
four-quarter period had been incurred, repaid or retired at the
beginning of such period (except that, in making such computation, the
amount of Debt under any revolving credit facility shall be computed
based upon the average daily balance of such Debt during such period);
(iii) in the case of Acquired Debt or Debt incurred in connection with
any acquisition since the first day of such four-quarter period, the
related acquisition had occurred as of the first day of such period with
the appropriate adjustments with respect to such acquisition being
included in such pro forma calculation; and (iv) in the case of any
acquisition or disposition by the Trust or its Subsidiaries of any asset
or group of assets since the first day of such four-quarter period,
whether by merger, stock purchase or sale, or asset purchase or sale,
such acquisition or disposition or any related repayment of Debt had
occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition being
included in such pro forma calculation.
(c) In addition to the limitation set forth in subsections (a) and
(b) of this Section 1004, the Trust will not, and will not permit any
Subsidiary to, incur any Debt secured by any mortgage, lien, charge,
pledge, encumbrance or security interest of any kind upon any of the
property of the Trust or any Subsidiary, whether owned at the date
hereof or hereafter acquired, if, immediately after giving effect to the
incurrence of such additional Debt and the application of the proceeds
thereof, the aggregate principal amount of all outstanding Debt of the
Trust and its Subsidiaries on a consolidated basis which is secured by
any mortgage, lien, charge, pledge, encumbrance or security interest on
property of the Trust or any Subsidiary is greater than 40% of the
Trust's Total Assets.
(d) For purposes of this Section 1004 Debt shall be deemed to be
"incurred" by the Trust or a Subsidiary whenever the Trust or such
Subsidiary shall create, assume, guarantee or otherwise become liable in
respect thereof.
SECTION 1005. Existence.
Subject to Article Eight, the Trust will do or cause to be done all
things necessary to preserve and keep in full force and effect the existence,
rights (charter and statutory) and franchises of the Trust and its
Subsidiaries; provided, however, that the Trust shall not be required to
preserve any right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Trust and its Subsidiaries as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders of
Securities of any series.
SECTION 1006. Maintenance of Properties.
The Trust will cause all of its properties used or useful in the conduct
of its business or the business of any Subsidiary to be maintained and kept
in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Trust may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Trust or
any Subsidiary from selling or otherwise disposing of for value its
properties in the ordinary course of its business.
SECTION 1007. Insurance.
The Trust will, and will cause each of its Subsidiaries to, keep all of
its insurable properties insured against loss or damage at least equal to
their then full insurable value with financially sound and reputable
insurance companies.
SECTION 1008. Payment of Taxes and Other Claims.
The Trust will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Trust or any Subsidiary, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Trust or any Subsidiary; provided,
however, that the Trust shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1009. Provision of Financial Information.
Whether or not the Trust is subject to Section 13 or 15(d) of the
Exchange Act, the Trust will, to the extent permitted under the Exchange Act,
file with the Commission the annual reports, quarterly reports and other
documents which the Trust would have been required to file with the
Commission pursuant to such Section 13 or 15(d) (the "Financial Statements")
if the Trust were so subject, such documents to be filed with the Commission
on or prior to the respective dates (the "Required Filing Dates") by which
the Trust would have been required so to file such documents if the Trust
were so subject.
The Trust will also in any event (x) within 15 days of each Required
Filing Date (i) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, without cost to such Holders, copies of the
annual reports and quarterly reports which the Trust would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act if the Trust were subject to such Sections, and (ii) file with the
Trustee copies of annual reports, quarterly reports and other documents which
the Trust would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Trust were subject to such
Sections and (y) if filing such documents by the Trust with the Commission is
not permitted under the Exchange Act, promptly upon written request and
payment of the reasonable cost of duplication and delivery, supply copies of
such documents to any prospective Holder.
SECTION 1010. Statement as to Compliance.
The Trust will deliver to the Trustee within 120 days after the end of
each fiscal year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Trust's compliance with all conditions and covenants under
this Indenture and, in the event of any noncompliance, specifying such
noncompliance and the nature and status thereof. For purposes of this
Section 1010, such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture.
SECTION 1011. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Trust will pay to the Holder or any Security of such series or
any coupon appertaining thereto Additional Amounts as may be specified as
contemplated by Section 301. Whenever in this Indenture there is mentioned,
in any context except in the case of Section 502(1), the payment of the
principal or of any premium, Make-Whole Amount or interest on, or in respect
of, any Security of any series or payment of any related coupon or the net
proceeds received on the sale or exchange of any Security of any series, such
mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established pursuant to Section
301 to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms and express
mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or Make-Whole Amount or interest if there has been
any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Trust will furnish the Trustee and the Trust's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of and any premium or interest on
the Securities of that series shall be made to Holders of Securities of that
series or any related coupons who are not United States persons without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of or within the series. If any such
withholding shall be required, then such Officers' Certificate shall specify
by country the amount, if any, required to be withheld on such payments to
such Holders of Securities of that series or related coupons and the Trust
will pay to the Trustee or such Paying Agent the Additional Amounts required
by the terms of such Securities. In the event that the Trustee or any Paying
Agent, as the case may be, shall not so receive the above-mentioned
certificate, then the Trustee or such Paying Agent shall be entitled (i) to
assume that no such withholding or deduction is required with respect to any
payment of principal or interest with respect to any Securities of a series
or related coupons until it shall have received a certificate advising
otherwise and (ii) to make all payments of principal and interest with
respect to the Securities of a series or related coupons without withholding
or deductions until otherwise advised. The Trust covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negligence or bad
faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section or in reliance on the Trust's not furnishing such an
Officers' Certificate.
SECTION 1012. Waiver of Certain Covenants.
The Trust may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1004 to 1009, inclusive, and
with any other term, provision or condition with respect to the Securities of
any series specified in accordance with Section 301 (except any such term,
provision or condition which could not be amended without the consent of all
Holders of Securities of such series pursuant to Section 902), if before or
after the time for such compliance the Holders of at least a majority in
principal amount of all outstanding Securities of such series, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend
to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Trust and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Trust to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election
of the Trust of less than all of the Securities of any series, the Trust
shall, at least 45 days prior to the giving of the notice of redemption in
Section 1104 (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Trust shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series issued on the same day
with the same terms are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Securities of such series issued on such
date with the same terms not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof)
of the principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Trust and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption
and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 days nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified by the terms of such series
established pursuant to Section 301, to each Holder of Securities to be
redeemed, but failure to give such notice in the manner herein provided to
the Holder of any Security designated for redemption as a whole or in part,
or any defect in the notice to any such Holder, shall not affect the validity
of the proceedings for the redemption of any other such Security or portion
thereof.
Any notice that is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if
any;
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be
redeemed;
(4) in case any Security is to be redeemed in part only, that on
and after the Redemption Date, upon surrender of such Security, the
holder will receive, without a charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed;
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date;
(6) the Place or Places of Payment where such Securities, together
in the case of Bearer Securities with all coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price and accrued interest, if any;
(7) that the redemption is for a sinking fund, if such is the
case;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Trust, the Trustee for such series and any Paying
Agent is furnished;
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to the redemption on this Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Trust, on which such
exchanges may be made;
(10) the CUSIP number of such Security, if any, provided that
neither the Trust nor the Trustee shall have any responsibility for any
such CUSIP number; and
(11) if applicable, that a Holder of Securities who desires to
convert Securities to be redeemed must satisfy the requirements for
conversion contained in such Securities, the then existing conversion
price or rate and the date and time when the option to convert shall
expire.
Notice of redemption of Securities to be redeemed shall be given by the
Trust or, at the Trust request, by the Trustee in the name and at the expense
of the Trust.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Trust shall deposit with the
Trustee or with a Paying Agent (or, if the Trust is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under
Article Twelve, segregate and hold in trust as provided in Section 1003) an
amount of money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities of
such series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series) (together with accrued interest, if
any, to the Redemption Date), and from and after such date (unless the Trust
shall default in the payment of the Redemption Price and accrued interest)
such Securities shall, if the same were interest-bearing, cease to bear
interest and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided below, shall be
void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Trust at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and provided further that, installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of
such missing coupon or coupons may be waived by the Trust and the Trustee if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium or Make-Whole
Amount, if any) shall, until paid, bear interest from the Redemption Date at
the rate borne by the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a
Place of Payment therefor (with, if the Trust or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the Trust and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing) and the Trust shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal
of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for
by the terms of such Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of any
Securities of any series, the cash amount of any mandatory sinking fund
payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Trust may, in satisfaction of all or any part of any mandatory
sinking fund with respect to the Securities of a series, (1) deliver
Outstanding Securities of such series (other than any previously called for
redemption) together in the case of any Bearer Securities of such series with
all matured coupons appertaining thereto and (2) apply as a credit Securities
of such series which have been redeemed either at the election of the Trust
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, as provided for by the terms of such Securities, or which have
otherwise been acquired by the Trust; provided that such Securities so
delivered or applied as a credit have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at
the applicable Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking payment date for Securities
of any series, the Trust will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash in the currency or
currencies, currency unit or units or composite currency or currencies in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series) and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202, and the optional amount,
if any, to be added in cash to the next ensuing mandatory sinking fund
payment, and will also deliver to the Trustee any Securities to be so
delivered and credited. If such Officers' Certificate shall specify an
optional amount to be added in cash to the next ensuing mandatory sinking
fund payment, the Trust shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the
expense of the Trust in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of
such Securities, if any, and (except as otherwise specified by the terms of
such series established pursuant to Section 301) in accordance with this
Article.
SECTION 1302. Repayment of Securities.
Securities of any series subject to repayment in whole or in part at the
option of the Holders thereof will, unless otherwise provided in the terms of
such Securities, be repaid at a price equal to the principal amount thereon,
together with interest, if any, thereof accrued to the Repayment Date
specified in or pursuant to the terms of such Securities. The Trust
covenants that on or before the Repayment Date it will deposit with the
Trustee or with a Paying Agent (or, if the Trust is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay the principal (or, if so provided by the terms
of the Securities of any series, a percentage of the principal) of, and
(except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to
be repaid on such date.
SECTION 1303. Exercise of Option.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. In order for any Security to be repaid at the
option of the Holder, the Trustee must receive at the Place of Payment
therefor specified in the terms of such Security (or at such other place or
places of which the Trust shall from time to time notify the Holders of such
Securities) not earlier than 60 days nor later than 30 days prior to the
Repayment Date (1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly completed by
the Holder (or by the Holder's attorney duly authorized in writing) or (2) a
telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities
Dealers, Inc. ("NASD"), or a commercial bank or trust company in the United
States setting forth the name of the Holder of the Security, the principal
amount of the Security, the principal amount of the Security to be repaid,
the CUSIP number, if any, or a description of the tenor and terms of the
Security, a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Security to be repaid, together with the
duly completed form entitled "Option to Elect Repayment" on the reverse of
the Security, will be received by the Trustee not later than the fifth
Business Day after the date of such telegram, telex, facsimile transmission
or letter; provided, however, that such telegram, telex, facsimile
transmission or letter shall only be effective if such Security and form duly
completed are received by the Trustee by such fifth Business Day. If less
than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be repaid, must
be specified. The principal amount of any Security providing for repayment
at the option of the Holder thereof may not be repaid in part if, following
such repayment, the unpaid principal amount of such Security would be less
than the minimum authorized denomination of Securities of or within the
series of which such Security to be repaid is a part. Except as otherwise
may be provided by the terms of any Security providing for repayment at the
option of the Holder thereof, exercise of the repayment option by the Holder
shall be irrevocable unless waived by the Trust.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable.
If Securities of any series providing for repayment at the option of the
Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities
or the portions thereof, as the case may be, to be repaid shall become due
and payable and shall be paid by the Trust on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Trust shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to
be repaid, except to the extent provided below, shall be void. Upon
surrender of any such Security for repayment in accordance with such
provisions, together with all coupons, if any, appertaining thereto maturing
after the Repayment Date, the principal amount of such security so to be
repaid shall be paid by the Trust, together with accrued interest, if any, to
the Repayment Date; provided, however, that coupons whose Stated Maturity is
on or prior to the Repayment Date shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified pursuant to Section 301, only
upon presentation and surrender of such coupons; and provided further that,
in the case of Registered Securities, installments of interest, if any, whose
Stated Maturity is on or prior to the Repayment Date shall be payable (but
without interest thereon, unless the Trust shall default in the payment
thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date,
such Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be
waived by the Trust and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
the Trustee or any Paying Agent any such missing coupon in respect of which
a deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an
office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in
such Security.
SECTION 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid in part
only, the Trust shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security, without service charge and at the expense of
the Trust, a new Registered Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
<PAGE>
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Trust's Option to Effect
Defeasance or Covenant Defeasance.
If, pursuant to Section 301, provision is made for either or both of (a)
defeasance of the Securities of or within a series under Section 1402 or (b)
covenant defeasance of the Securities of or within a series under Section
1403 to be applicable to the Securities of any series, then the provisions of
such Section or Sections, as the case may be, together with the other
provisions of this Article (with such modifications thereto as may be
specified pursuant to Section 301 with respect to any Securities), shall be
applicable to such Securities and any coupons appertaining thereto, and the
Trust may at its option by Board Resolution, at any time, with respect to
such Securities and any coupons appertaining thereto, elect to defease such
Outstanding Securities and any coupons appertaining thereto pursuant to
Section 1402 (if applicable) or Section 1403 (if applicable) upon compliance
with the conditions set forth below in this Article.
SECTION 1402 Defeasance and Discharge.
Upon the Trust's exercise of the above option applicable to this Section
with respect to any Securities of or within a series, the Trust shall be
deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any coupons appertaining thereto on the date the
conditions set forth in Section 1404 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Trust shall
be deemed to have paid and discharged the entire indebtedness represented by
such Outstanding Securities and any coupons appertaining thereto, which shall
thereafter be deemed to be "Outstanding" only for the purposes of Section
1405 and the other Sections of this Indenture referred to in clauses (A) and
(B) below, and to have satisfied all of its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Trust, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
such Outstanding Securities and any coupons appertaining thereto to receive,
solely from the trust fund described in Section 1404 and as more fully set
forth in such Section, payments in respect of the principal of (and premium
or Make-Whole Amount, if any) and interest, if any, on such Securities and
any coupons appertaining thereto when such payments are due, (B) the Trust's
obligations with respect to such Securities under Sections 305, 306, 1002 and
1003 and with respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Section 1011, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article. Subject
to compliance with this Article Fourteen, the Trust may exercise its option
under this Section notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any coupons appertaining
thereto.
SECTION 1403. Covenant Defeasance.
Upon the Trust's exercise of the above option applicable to this Section
with respect to any Securities of or within a series, the Trust shall be
released from its obligations under Sections 1004 to 1009, inclusive, and, if
specified pursuant to Section 301, its obligations under any other covenant,
with respect to such Outstanding Securities and any coupons appertaining
thereto on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Sections 1004 to 1009, inclusive, or such other covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the Trust may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein
to any such Section or such other covenant or by reason of reference in any
such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a default or
an Event of Default under Section 501(4) or 501(9) or otherwise, as the case
may be, but, except as specified above, the remainder of this Indenture and
such Securities and any coupons appertaining thereto shall be unaffected
thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402 or
Section 1403 to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
(a) The Trust shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any coupons appertaining thereto, (1) an
amount in such currency, currencies or currency unit in which such
Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity, or (2) Government Obligations applicable to
such Securities and coupons appertaining thereto (determined on the
basis of the currency, currencies or currency unit in which such
Securities and coupons appertaining thereto are then specified as
payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment
of principal of (and premium or Make-Whole Amount, if any) and interest,
if any, on such Securities and any coupons appertaining thereto, money
in an amount, or (3) a combination thereof in an amount, sufficient,
without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium or Make-Whole Amount, if
any) and interest, if any, on such Outstanding Securities and any
coupons appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities
and any coupons appertaining thereto on the day on which such payments
are due and payable in accordance with the terms of this Indenture and
of such Securities and any coupons appertaining thereto; provided, that
the Trustee shall have been irrevocably instructed to apply such money
or the proceeds of such Government Obligations to said payments with
respect to such Securities. Before such a deposit, the Trust may give
to the Trustee, in accordance with Section 1102 hereof, a notice of its
election to redeem all or any portion of such Outstanding Securities at
a future date in accordance with the terms of the Securities of such
series and Article Eleven hereof, which notice shall be irrevocable.
Such irrevocable redemption notice, if given, shall be given effect in
applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Trust is a party
or by which it is bound (and shall not cause the Trustee to have a
conflicting interest pursuant to Section 310(b) of the TIA with respect
to any Security of the Trust).
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such
Securities and any coupons appertaining thereto shall have occurred and
be continuing on the date of such deposit or, insofar as Sections 501(7)
and 501(8) are concerned, at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(d) In the case of an election under Section 1402, the Trust shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Trust has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance had
not occurred.
(e) In the case of an election under Section 1403, the Trust shall
have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of such Outstanding Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had
not occurred.
(f) The Trust shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant
defeasance under Section 1403 (as the case may be) have been complied
with and an Opinion of Counsel to the effect that either (i) as a result
of a deposit pursuant to subsection (a) above and the related exercise
of the Trust's option under Section 1402 or Section 1403 (as the case
may be) registration is not required under the Investment Company Act of
1940, as amended, by the Trust, with respect to the trust funds
representing such deposit or by the Trustee for such trust funds or (ii)
all necessary registrations under said Act have been effected.
(g) After the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
(h) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with
any additional or substitute terms, conditions or limitations which may
be imposed on the Trust in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this
Section 1405, the "Trustee") pursuant to Section 1404 in respect of any
Outstanding Securities of any series and any coupons appertaining thereto
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Trust acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal
(and premium or Make-Whole Amount, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other funds
except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been
made, (a) the Holder of a Security in respect of which such deposit was made
is entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of
such Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium or Make-Whole
Amount, if any), and interest, if any, on such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property
deposited in respect of such Security into the currency or currency unit in
which such Security becomes payable as a result of such election or
Conversion Event based on the applicable market exchange rate for such
currency or currency unit in effect on the second Business Day prior to each
payment date, except, with respect to a Conversion Event, for such currency
or currency unit in effect (as nearly as feasible) at the time of the
Conversion Event.
The Trust shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Trust from time to time upon Trust Request any
money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to
be held at such time and at such place in the Borough of Manhattan, The
City of New York, or in London as the Trustee shall determine. Notice
of every meeting of Holders of Securities of any series, setting forth
the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Trust, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Trust or the Holders of Securities of such series in the amount
above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York, or in London
for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities
of such series, or (2) a Person appointed by an instrument in writing as
proxy for a Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be entitled to
be present or to speak at any meeting of Holders of Securities of any series
shall be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Trust and its counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action
is to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a
quorum. In the absence of a quorum within 30 minutes after the time
appointed for any such meeting, the meeting shall, if convened at the request
of Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In
the absence of a quorum at any such adjourned meeting, such adjourned meeting
may be further adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such adjourned
meeting. Notice of the reconvening of any adjourned meeting shall be given
as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of any adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of
such series and one or more additional series;
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence
of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted
or required by any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104 or by
having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section
104 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Trust or by Holders of Securities as provided in Section
1502(b), in which case the Trust or the Holders of Securities of or
within the series calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
the Outstanding Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by
the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of
such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the
meeting, and the meeting may be held as so adjourned without further
notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the fact, setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 1502 and, if applicable, Section 1504. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Trust and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by a
specified percentage in principal amount of the Holders of any or all series
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Holders in
<PAGE>
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Article Six) conclusive in
favor of the Trustee and the Trust, if made in the manner provided in this
Article.
SECTION 1508. Proof of Execution of Instruments.
Subject to Article Six, the execution of any instrument by a Holder or
his agent or proxy may be proved in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee
* * * * *
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers hereunto duly authorized, all as
of the day and year first above written.
UNITED DOMINION REALTY TRUST, INC.
By: s/ John P. McCann
Name: John P. McCann
Title: President and Chief Executive
Officer
NATIONSBANK OF VIRGINIA, N.A.,
as Trustee
By: s/ Dante M. Monakil
Name:Dante M. Monakil
Title: Assistant Vice President
<PAGE>
STATE OF VIRGINIA
CITY OF RICHMOND
The foregoing instrument was acknowledged before me in the City
of Richmond, State of Virginia, by John P. McCann, President and Chief
Executive Officer of United Dominion Realty Trust, Inc. a corporation, on
behalf of the corporation.
My commission expires August 31, 1994.
s/ Donna A. Andrews
Notary Public
STATE OF VIRGINIA
CITY OF RICHMOND
The foregoing instrument was acknowledged before me in the City
of Richmond, State of Virginia, by Dante M. Monakil, Assistant Vice President
of NationsBank of Virginia, N.A., a national banking association, on behalf
of the association.
My commission expires August 31, 1994.
s/ Donna A. Andrews
Notary Public
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the
income of which is subject to United States federal income taxation
regardless of its source ("United States person(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United States
Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as
"financial institutions") purchasing for their own account or for resale, or
(b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise Property
Trust of America or its agent that such financial institution will provide a
certificate within a reasonable time stating that it agrees to comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) are owned by a financial institution for purposes of resale during
the restricted period (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and, such financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)),
certifies that it has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the above-
captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not related to [U.S.$]
________________ of such interest in the above-captioned Securities in
respect of which we are not able to certify and as to which we understand an
exchange for an interest in a Permanent Global Security or an exchange for
and delivery of definitive Securities (or, if relevant, collection of any
interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings.
Dated: __________________, 19__
[To be dated no earlier than the 15th day prior
to the earlier of (i) the Exchange Date or
(ii) the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Name of Person Making
Certification]
___________________________
(Authorized Signator)
Name:
Title:
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof, [U.S.$]
______________ principal amount of the above-captioned Securities (i) is
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) is owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in United States Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case
(a) or (b), each such financial institution has agreed, on its own behalf or
through its agent, that we may advise Property Trust of America or its agent
that such financial institution will provide a certificate within a
reasonable time stating that it agrees to comply with the requirements of
Section 165(j)(3)(A), (B), or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by a financial
institution for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and
that such financial institutions described in clause (iii) above (whether or
not also described in clause (i) or (ii)) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and
(ii) as of the date hereof we have not received any notification from any of
our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, collection of any interest) are no
longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings.
Dated: __________________, 19__
[To be dated no earlier than the earlier of
the Exchange Date or the relevant Interest
Payment Date occurring prior to the Exchange
Date, as applicable]
[Morgan Guaranty Trust
Company of New York,
Brussels Office,] as
Operator of the
Euroclear System
[Cedel S.A.]
By: _______________________
WHEREAS, in resolutions adopted on February 17, 1994 (the "Resolutions"), the
Board of Directors has authorized the registration, issuance and sale of
$75,000,000 of senior unsecured notes of the Trust (the "Notes"); and
WHEREAS, pursuant to the Resolutions, the Trust has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form
S-3 (File No. 33-52521) (the "Registration Statement") relating to the Notes
and an amendment to the Registration Statement, and the Commission declared
the Registration Statement effective on March 29, 1994; and
WHEREAS, Goldman, Sachs & Co. ("Goldman Sachs") was identified in the
Registration Statement as the underwriter of the Notes; and
WHEREAS, on March 30, 1994, management of the Trust and Goldman Sachs agreed
as to the terms of the Notes and the terms on which they would be issued and
sold to Goldman Sachs; and
WHEREAS, the Board of Directors has determined to ratify, approve and confirm
the action taken by management in connection with the issuance and sale of
the Notes, as set forth in the following resolutions,
RESOLVED, that the Notes shall be issued under and pursuant to the terms of
an indenture (the "Indenture") from the Trust to NationsBank of Virginia,
N.A., as Trustee, in substantially the form filed as Exhibit 4(d)(i) to the
Registration Statement.
RESOLVED, that in accordance with Section 301 of the Indenture, the following
terms of the Notes are hereby established (terms used in these resolutions
having the same definitions as in the Indenture):
(1) The Notes shall constitute a series of Securities having the
title "7 1/4% Notes due April 1, 1999."
(2) The aggregate principal amount of the Notes that may be
authenticated and delivered under the Indenture (except for Notes
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Section 304, 305,
306, 906, 1107 or 1305 of the Indenture) shall be $75,000,000.
(3) The entire outstanding principal of the Notes shall be payable
on April 1, 1999.
(4) The rate at which the Notes shall bear interest shall be 7 1/4%
per annum; the date from which such interest shall accrue shall be April
1, 1994; the Interest Payment Dates on which such interest will be
payable shall be April 1 and October 1 in each year, beginning October
1, 1994; the Regular Record Dates for the interest payable on the Notes
on any Interest Payment Date shall be the preceding March 15 (in the
case of interest payable on any April 1) and September 15 (in the case
of interest payable on any October 1); and the basis upon which interest
shall be calculated shall be that of a 360-day year consisting of twelve
30-day months.
(5) The place in addition to the Borough of Manhattan, The City of
New York, where the principal of (and Make-Whole Amount, if any) and
interest on the Notes shall be payable and Notes may be surrendered for
registration of transfer or exchange shall be the Corporate Trust
Operations Office of the Trustee at 715 Peachtree Street, N.E., Midtown
Center, 7th Floor, Atlanta, Georgia 30308. The place in addition to
the Borough of Manhattan, The City of New York, where notices or demands
to or upon the Trust in respect of the Notes and this Indenture may be
served shall be the Corporate Trust Office of the Trustee at 600 East
Main Street, Suite 1700, Richmond, Virginia 23219.
(6) The Notes shall be redeemable at any time at the option of the
Trust, in whole or in part, at a Redemption Price, payable in Dollars,
equal to the sum of (i) the principal amount of the Notes being redeemed
plus accrued interest thereon to the redemption date and (ii) the Make-
Whole Amount, if any, with respect to such Notes.
(7) The Trust shall not be obligated to redeem, repay or purchase
Notes pursuant to any sinking fund or analogous provision or at the
option of a Holder thereof.
(8) The Notes shall be issuable in denominations of $1,000 and any
integral multiple thereof.
(9) In addition to the Trustee, Midwest Clearing Corporation, 40
Broad Street, 22d Floor, New York, New York 10004 is appointed Paying
Agent for the Notes.
(10) The entire outstanding principal amount of the Notes (and
Make-Whole Amount, if any) shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 502 of the
Indenture.
(11) Payment of the principal of (and Make-Whole Amount, if any)
and interest on the Notes shall be payable in Dollars and the Notes
shall be denominated in Dollars.
(12) The Make-Whole Amount, in connection with any optional
redemption or accelerated payment of any Note, shall be the excess, if
any, of (i) the aggregate present value as of the date of such
redemption or accelerated payment of each Dollar of principal being
redeemed or paid and the amount of interest (exclusive of any interest
accrued to the date of redemption or accelerated payment) that would
have been payable in respect of such Dollar if such redemption or
accelerated payment had not been made, determined by discounting, on a
semiannual basis, such principal and interest at the Reinvestment Rate,
as defined below (determined on the third Business Day preceding the
date such notice of redemption is given or declaration of acceleration
is made), from the respective dates on which such principal and interest
would have been payable if such redemption or accelerated payment had
not been made, over (ii) the aggregate principal amount of the Notes
being redeemed or paid. "Reinvestment Rate" means .25% (one-fourth of
one percent) plus the arithmetic mean of the yields under the respective
headings "This Week" and "Last Week" published in the Statistical
Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining
life to maturity, as of the payment date of the principal being redeemed
or paid. If no maturity exactly corresponds to such maturity, yields
for the two published maturities most closely corresponding to such
maturity shall be calculated pursuant to the immediately preceding
sentence and the Reinvestment Rate shall be interpolated or extrapolated
from such yields on a straight-line basis, rounding in each of such
relevant periods to the nearest month. For the purposes of calculating
the Reinvestment Rate, the most recent Statistical Release published
prior to the date of determination of the Make-Whole Amount shall be
used. "Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which establishes yields on actively
traded United States government securities adjusted to constant
maturities or, if such statistical release is not published at the time
of any determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Trust.
(13) The principal of (and Make-Whole Amount, if any) and interest
on the Notes shall be payable only in Dollars.
(14) The Holders of the Notes shall have no special rights in
addition to those provided in the Indenture upon the occurrence of any
particular events.
(15) There shall be no deletions from, modifications of or
additions to the Events of Default or covenants of the Trust with
respect to Notes set forth in the Indenture.
(16) The Notes shall be issuable only as Registered Securities in
permanent global form (without coupons). Beneficial owners of interests
in the permanent global Note may exchange such interests for Notes of
like tenor of any authorized form and denomination only in the manner
provided in Section 305 of the Indenture. DTC shall be the depositary
with respect to the permanent global Note. The form of such permanent
global Note filed with the minutes of this meeting and identified as
Exhibit A is hereby approved.
(17) The Notes shall not be issuable as Bearer Securities.
(18) Interest on any Note shall be payable only to the Person in
whose name that Note (or one or more Predecessor Securities thereof) is
registered at the close of business on the Regular Record Date for such
interest.
(19) Sections 1402 and 1403 of the Indenture shall be applicable to
the Notes.
(20) The Notes shall not be issuable in definitive form except
under the circumstances described in Section 305 of the Indenture.
(21) The Notes shall not be issued upon the exercise of debt
warrants.
(22) The Trust shall not pay Additional Amounts as contemplated by
Section 1011 of the Indenture on the Notes.
(23) The Trust shall have no obligation to permit the conversion of
the Notes into shares of Capital Stock of the Trust.
RESOLVED, that the Notes shall be sold to Goldman Sachs pursuant to an
underwriting agreement (the "Underwriting Agreement") between Goldman Sachs
and the Trust in substantially the form of Exhibit 1 to the Registration
Statement at a price equal to 99.183% of the principal amount thereof, plus
accrued interest from April 1, 1994.
RESOLVED, that each of the President and the Senior Vice President and Chief
Financial Officer of the Trust (and, in the absence of the Senior Vice
President and Chief Financial Officer of the Trust, by each of the Vice
President, Controller - Corporate Accounting and Assistant Secretary and the
Vice President, Secretary and General Counsel of the Trust) is authorized, in
the name and on behalf of the Trust and where appropriate under its corporate
seal attested by its Secretary or an Assistant Secretary, to execute and
deliver the Indenture, the Notes and the Underwriting Agreement in the forms
approved hereby, with such changes as shall have been approved by the
executing officer, provided that any such change shall be consistent with all
determinations made by the Board of Directors in these resolutions.
RESOLVED, that all officers of the Trust are authorized, in the name and on
behalf of the Trust, to make, execute and deliver or cause to be made,
executed and delivered, and to evidence the approval of the Board of
Directors of, all such officers' certificates, depository agreements, letters
of representation or other agreements or arrangements necessary or
appropriate in connection with the administration of any book-entry
arrangements for the Notes, and such other agreements, undertakings,
documents or instruments, and to perform all such acts and make all such
payments, as may, in the judgment of such officers, be necessary, appropriate
or desirable to effectuate the purpose of these resolutions, including the
performance of the obligations of the Trust under the Indenture, the Notes,
the Registration Statement, the Underwriting Agreement and any other
agreement, undertaking, document or instrument referred to herein or therein.
RESOLVED, that the authority to execute and file consents to service of
process in connection with qualification of the Notes under the securities
laws of jurisdictions of the United States, given the President and Secretary
of the Trust in the Resolutions shall also be exercisable by the Senior Vice
President and Chief Financial Officer, and any action heretofore taken
pursuant to such authority by the Senior Vice President and Chief Financial
Officer is approved, ratified and confirmed.
RESOLVED, that any and all action heretofore taken by the President and the
Senior Vice President and Chief Financial Officer of the Trust in respect of
fixing or agreeing to the terms of the Notes and the terms on which they are
to be sold pursuant to the Underwriting Agreement that is consistent with
these resolutions and the authority conferred hereby is ratified, approved
and confirmed.
REGISTERED PRINCIPAL AMOUNT
No.: $
CUSIP No.: 910197AB8
UNITED DOMINION REALTY TRUST, INC.
7 1/4% NOTE DUE APRIL 1, 1999
UNITED DOMINION REALTY TRUST, INC., a Virginia corporation (hereinafter
called the "Trust," which term shall include any successor corporation under
the Indenture hereinafter referred to), for value received, hereby promises
to pay to , or registered assigns, upon presentation, the principal
sum of DOLLARS on April 1, 1999, and to pay interest on
the outstanding principal amount thereon from April 1, 1994, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on April 1 and October 1 in each year,
commencing October 1, 1994, at the rate of 7 1/4% per annum, until the entire
principal amount hereof is paid or made available for payment. The interest
so payable, and punctually paid or duly provided for on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in whose name
this Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest which shall be the
March 15 or September 15 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date, and may either be paid to the Person
in whose name this Note (or one or more Predecessor Notes) is registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given
to Holders of Notes of this series not more than 15 days and not less than 10
days prior to such Special Record Date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of, Make-Whole Amount, if any, on, and interest on
this Note will be made at the office or agency of the Trust maintained for
that purpose in the City of Richmond, State of Virginia, or elsewhere as
provided in the Indenture, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Trust payment of
interest may be made by (i) check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register kept
for the Notes pursuant to Section 305 of the Indenture (the "Note Register")
or (ii) transfer to an account of the Person entitled thereto located inside
the United States.
This Note is one of a duly authorized issue of securities of the Trust
(herein called the "Notes"), issued and to be issued in one or more series
under an Indenture, dated as of April 1, 1994 (herein called the
"Indenture"), between the Trust and NationsBank of Virginia, N.A. (herein
called the "Trustee," which term includes any successor trustee under the
Indenture with respect to the Notes), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Trust, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note
is one of the series designated as the "7 1/4% Notes due April 1, 1999,"
limited in aggregate principal amount to $75,000,000.
The Notes may be redeemed at any time at the option of the Trust, in
whole or in part, upon notice of not more than 60 nor less than 30 days prior
to the Redemption Date, at a redemption price equal to the sum of (i) the
principal amount of the Notes being redeemed plus accrued interest thereon to
the Redemption Date and (ii) the Make-Whole Amount, if any, with respect to
such Notes.
The following definitions apply with respect to any redemption of the
Notes of this series at the option of the Trust:
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any Note, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of
each dollar of principal being redeemed or paid and the amount of interest
(exclusive of any interest accrued to the date of redemption or accelerated
payment) that would have been payable in respect of such dollar if such
redemption or accelerated payment had not been made, determined by
discounting, on a semiannual basis, such principal and interest at the
Reinvestment Rate (determined on the third Business Day preceding the date
such notice of redemption is given or declaration of acceleration is made)
from the respective dates on which such principal and interest would have
been payable if such redemption or accelerated payment had not been made,
over (ii) the aggregate principal amount of the Notes being redeemed or paid.
"Reinvestment Rate" means .25% (one-fourth of one percent) plus the
arithmetic mean of the yields under the respective headings "This Week" and
"Last Week" published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date of
the principal being redeemed or paid. If no maturity exactly corresponds to
such maturity, yields for the two published maturities most closely
corresponding to such maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purposes of calculating the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the Make-Whole Amount
shall be used.
"Statistical Release" means the statistical release designated "H.15
(519)" or any successor publication which is published weekly by the Federal
Reserve System and which establishes yields on actively traded United States
government securities adjusted to constant maturities or, if such statistical
release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be
designated by the Trust.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Trust on this Note and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Trust, in each case, upon compliance by the Trust with certain conditions set
forth in the Indenture, which provisions apply to this Note.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of, and the Make-Whole Amount, if any, on, the
Notes may be declared due and payable in the manner and with the effect
provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with
respect to the Notes, the Holders of not less than 25% in principal amount of
the Notes at the time Outstanding shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default as
Trustee and offered the Trustee reasonable indemnity and the Trustee shall
not have received from the Holders of a majority in principal amount of the
Notes at the time Outstanding a direction inconsistent with such request, and
shall have failed to institute any such proceeding, for 60 days after receipt
of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Note for the enforcement
of any payment of principal hereof or any interest on or after the respective
due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trust and the rights of the Holders of the Notes under the Indenture at any
time by the Trust and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Outstanding Notes. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Notes at the time Outstanding, on behalf of the
Holders of all Notes, to waive compliance by the Trust with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note
shall be conclusive and binding upon such Holder and upon all future Holders
of this Note and of any Note issued upon the registration of transfer hereof
or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Trust, which is
absolute and unconditional, to pay the principal of, Make-Whole Amount, if
any, on, and interest on this Note at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Note Register,
upon surrender of this Note for registration of transfer at the office or
agency of the Trust in any Place of Payment where the principal of, Make-
Whole Amount, if any, on, and interest on this Note are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Trust and the Security Registrar for the Notes (the "Note
Registrar") duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of this series, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set
forth, Notes of this series are exchangeable for a like aggregate principal
amount of Notes of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Trust may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Trust, the Trustee and any agent of the Trust or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Trust, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Note, or because of any indebtedness
evidenced thereby, shall be had against any promoter, as such or, against any
past, present or future shareholder, officer or director, as such, of the
Trust or of any successor, either directly or through the Trust or any
successor, under any rule of law, statute or constitutional provision or by
the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Note by the Holder thereof and as part of the
consideration for the issue of the Notes.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE COMMONWEALTH OF VIRGINIA.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Trust has caused "CUSIP" numbers to
be printed on the Notes as a convenience to the Holders of the Notes. No
representation is made as to the correctness or accuracy of such CUSIP
numbers as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Note shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Trust has caused this instrument to be duly
executed under its corporate seal this day of , 199 .
UNITED DOMINION REALTY TRUST, INC.
By:_______________________
Name:________________
Title:_______________
Attest:
By:_______________________
Name:________________
Title:_______________
[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes of the series designated "7 1/4% Notes due
April 1, 1999" pursuant to the within-mentioned Indenture.
NATIONSBANK OF VIRGINIA, N.A.,
as Trustee
By:________________________
Authorized Signatory
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
the within Note of United Dominion Realty Trust and __________ hereby does
irrevocably constitute and appoint
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Attorney to transfer said Note on the books of the within-named Trust with
full power of substitution in the premises.
Dated: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
