As filed with the Securities and Exchange Commission on November 15, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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United Dominion Realty Trust, Inc.
(Exact name of registrant as specified in its charter)
Virginia 54-0857512
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
10 South 6th Street, Suite 203
Richmond, Virginia 23219-3802
(804) 780-2691
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
John P. McCann
President and Chief Executive Officer
United Dominion Realty Trust, Inc.
10 South 6th Street, Suite 203
Richmond, Virginia 23219-3802
(804) 780-2691
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
James W. Featherstone, III, Esq. Howard G. Godwin, Jr., Esq.
Hunton & Williams Brown & Wood
951 East Byrd Street One World Trade Center
Richmond, Virginia 23219-4074 New York, New York 10048-0557
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement in light of market
conditions and other factors.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.|_|
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.|X|
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering.|_|____________
If this form is a post-effective amendment filed pursuant to Rule 462(b) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.|_|___________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.|X|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Aggregate Amount Offering Price Per Aggregate Offering Registration
Securities to be Registered(1) to be Registered(2) Unit(3) Price(2)(3) Fee(5)(6)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities $400,000,000 $400,000,000
Preferred Stock $400,000,000 (4) $400,000,000 $80,000
Common Stock $400,000,000 $400,000,000
===================================================================================================================
</TABLE>
(1) This registration statement also covers delayed delivery contracts that may
be issued by the registrant under which the party purchasing such contracts
may be required to purchase Debt Securities, Preferred Stock or Common
Stock. Such contracts may be issued together with the specific Offered
Securities to which they relate. In addition, Offered Securities registered
hereunder may be sold either separately or as units comprising more than
one type of Offered Security registered hereunder.
(2) In U.S. dollars or the equivalent thereof in one or more foreign currencies
or units of two or more foreign currencies or composite currencies (such as
European Currency Units).
(3) Estimated solely for purposes of calculating the registration fee. No
separate consideration will be received for Common Stock or Preferred Stock
as may from time to time be issued upon conversion of Debt Securities or
Preferred Stock.
(4) Omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933.
(5) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933.
(6) Pursuant to Rule 429 under the Securities Act of 1933, $62,312,500 of
Offered Securities are being carried forward from registration statement
No. 33-55159. The amount of the registration fee associated with such
Offered Securities that was previously paid with registration statement No.
33-55159 is $21,487.
The prospectus included in this registration statement is a combined prospectus
relating also to registration statement No. 33-55159. This registration
statement also constitutes post-effective amendment No. 1 to registration
statement No. 33-55159 and such post-effective amendment shall hereafter become
effective concurrently with the effectiveness of this registration statement and
in accordance with Section 8(c) of the Securities Act of 1933. This registration
statement and the registration statement amended hereby are collectively
referred to herein as the "Registration Statement."
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
SUBJECT TO COMPLETION, DATED NOVEMBER 15, 1995
PROSPECTUS
$462,312,500
[UDRT logo]
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
United Dominion Realty Trust, Inc. (the "Trust") intends to issue from time
to time its (i) unsecured senior or subordinated debt securities (the "Debt
Securities"), (ii) shares of Preferred Stock, no par value ("Preferred Stock"),
and (iii) shares of Common Stock, $1 par value ("Common Stock"), having an
aggregate initial public offering price not to exceed $462,312,500 or the
equivalent thereof in one or more foreign currencies or composite currencies,
including European Currency Units, on terms to be determined at the time of
sale. The Debt Securities, the Preferred Stock and the Common Stock offered
hereby (collectively, the "Offered Securities") may be offered, separately or as
units with other Offered Securities, in separate series in amounts, at prices
and on terms to be determined at the time of sale and to be set forth in a
supplement to this Prospectus (a "Prospectus Supplement").
The Debt Securities will be direct unsecured obligations of the Trust and
may be either senior Debt Securities ("Senior Securities") or subordinated Debt
Securities ("Subordinated Securities"). The Senior Securities will rank equally
with all other unsecured and unsubordinated indebtedness of the Trust. The
Subordinated Securities will be subordinated to all existing and future Senior
Debt of the Trust, as defined. See "Description of Debt Securities."
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable, (i) in the case of Debt
Securities, the specific designation, aggregate principal amount, currency,
denominations, maturity, priority, interest rate, time of payment of interest,
terms of redemption at the option of the Trust or repayment at the option of the
holder or for sinking fund payments, terms for conversion into or exchange for
other Offered Securities and the initial public offering price; (ii) in the case
of Preferred Stock, the series designation and number of shares and the
dividend, liquidation, redemption, conversion, voting and other rights and the
initial public offering price; (iii) in the case of Common Stock, the initial
public offering price; and (iv) in the case of all Offered Securities, whether
such Offered Securities will be offered separately or as a unit with other
Offered Securities. In addition, such specific terms may include limitations on
direct or beneficial ownership and restrictions on transfer of the Offered
Securities, in each case as may be appropriate to preserve the status of the
Trust as a qualified real estate investment trust ("REIT") under the Internal
Revenue Code of 1986, as amended (the "Code").
The applicable Prospectus Supplement will also contain information, where
applicable, concerning certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Offered Securities
covered thereby.
The Offered Securities may be offered directly, through agents designated
from time to time by the Trust, or to or through underwriters or dealers. If any
designated agents or any underwriters are involved in the sale of Offered
Securities, they will be identified and their compensation will be described in
the applicable Prospectus Supplement. See "Plan of Distribution." No Offered
Securities may be sold without delivery of the applicable Prospectus Supplement
describing such Offered Securities and the method and terms of the offering
thereof.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED THE
MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
The date of this Prospectus is , 1995.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD
NOR MAY OFFERS TO BUY BE ACCEPTED WITHOUT THE DELIVERY OF A FINAL PROSPECTUS
SUPPLEMENT AND PROSPECTUS. THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN
OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE
IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
AVAILABLE INFORMATION
The Trust is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Trust with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
its Regional Offices at Suite 1400, 500 West Madison Street, Chicago, Illinois
60661 and Suite 1300, 7 World Trade Center, New York, New York 10048, and can
also be inspected and copied at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005. Copies of such material can be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, upon payment of the prescribed fees.
This Prospectus is part of a registration statement on Form S-3 (together
with all amendments and exhibits, the "Registration Statement") filed by the
Trust with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules of the Commission. For further information, reference
is made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Trust with the Commission under the
Exchange Act are hereby incorporated by reference in this Prospectus: (i) the
Trust's annual report on Form 10-K for the year ended December 31, 1994; (ii)
the Trust's quarterly reports on Form 10-Q for the quarters ended March 31, June
30 and September 30, 1995; (iii) the Trust's Current Reports on Form 8-K dated
April 11 and June 30, 1995; and (iv) the descriptions of the Common Stock and
the Trust's 9 1/4% Series A Cumulative Redeemable Preferred Stock, no par value
(the "Series A Preferred"), contained in the Trust's registration statements on
Form 8-A dated April 19, 1990 and April 24, 1995, respectively, filed under the
Exchange Act, including any amendment or reports filed for the purpose of
updating such descriptions. All documents filed by the Trust pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the
offering of all of the Offered Securities shall be deemed to be incorporated by
reference herein.
Any statement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
in any accompanying Prospectus Supplement relating to a specific offering of
Offered Securities or in any other subsequently filed document, as the case
maybe, which also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus or any accompanying Prospectus Supplement.
The Trust will provide on request and without charge to each person to whom
this Prospectus is delivered a copy (without exhibits) of any or all documents
incorporated by reference into this Prospectus. Requests for such copies should
be directed to United Dominion Realty Trust, Inc., 10 South 6th Street, Suite
203, Richmond, Virginia 23219-3802, Attention: Secretary (telephone
804/780-2691).
THE TRUST
The Trust, founded in 1972, is a self-administered equity real estate
investment trust that owns and operates apartments in the Mid-Atlantic and
Southeast from Delaware to Florida. It is a fully integrated real estate company
that acquires, improves, operates, manages and selectively sells properties with
the primary goal of maximizing its funds from operations, while increasing the
value of its real estate through capital improvements and intensive management.
The Trust's 149 properties include 137 apartment communities containing
33,198 apartment units, eight neighborhood shopping centers and four other
commercial properties. Most of the Trust's properties are located in the
Southeast. Management believes that the Trust has benefitted from the population
and job growth within this region and that this region will continue to provide
attractive demographic and economic patterns conducive to real estate investment
in the 1990's.
<PAGE>
The Trust's investment policy has been to acquire two types of apartments:
newer properties that can be acquired at discounts from replacement cost and
properties that can be upgraded and repositioned by capital improvements and
intensive property management. Beginning in 1991, the Trust embarked on a major
expansion of its apartment portfolio involving (i) the acquisition of apartment
properties having high occupancy levels and not requiring substantial renovation
and (ii) entry into new markets, most recently the Fort Lauderdale/Miami area
and Memphis, Tennessee. The properties have been acquired generally at
significant discounts from replacement cost and at attractive current yields.
Since the beginning of 1991, net of resales, the Trust has acquired 99 apartment
properties containing 24,449 units at a total cost of approximately $798
million.
The Trust has paid continuous quarterly distributions to its shareholders
since 1973 and has increased its distributions each year during the past 19
years. The current indicated annual Common Stock distribution is $.90 per share.
In past years, a portion of the Trust's distributions to shareholders has been
designated as a non-taxable return of capital for federal income tax purposes.
The Trust, a Virginia corporation, has its principal office at 10 South 6th
Street, Suite 203, Richmond, Virginia 23219-3802, and its telephone number is
(804) 780-2691. Unless the context indicates otherwise, the term "Trust," as
used herein, includes the Trust and its subsidiaries, all of which are
wholly-owned.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the net
proceeds from the sale of the Offered Securities will be used for general
corporate purposes, which may include repayment of indebtedness, making
improvements to properties and the acquisition of additional properties.
CERTAIN RATIOS
The following table sets forth the Trust's consolidated ratios of earnings
to fixed charges, earnings to combined fixed charges and Preferred Stock
dividends, funds from operations to fixed charges and funds from operations to
combined fixed charges and Preferred Stock dividends for the periods shown.
<TABLE>
<CAPTION>
Nine Months Ended
Year Ended December 31, September 30,
1990 1991 1992 1993 1994 1994 1995
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges ............ 1.43x 1.27x 1.54x 1.64x 1.69x 1.76x 1.82x
Ratio of earnings to combined fixed charges
and Preferred Stock dividends ............... 1.43x 1.27x 1.54x 1.64x 1.69x 1.76x 1.60x
Ratio of funds from operations to fixed charges 2.43x 2.32x 3.00x 2.80x 2.71x 2.84x 2.61x
Ratio of funds from operations to combined
fixed charges and Preferred Stock dividends . 2.40x 2.30x 2.95x 2.75x 2.67x 2.84x 2.30x
</TABLE>
The ratios of earnings to fixed charges were computed by dividing earnings
by fixed charges and the ratios of funds from operations to fixed charges were
computed by dividing funds from operations by fixed charges. The ratios of
earnings to combined fixed charges and Preferred Stock dividends were computed
by dividing earnings by the total of fixed charges and Preferred Stock dividends
and the ratios of funds from operations to combined fixed charges and Preferred
Stock dividends were computed by dividing funds from operations by the total of
fixed charges and Preferred Stock dividends. For purposes of computing these
ratios, earnings consist of income before extraordinary items plus fixed charges
other than capitalized interest, and fixed charges consist of interest on
borrowed funds (including capitalized interest) and amortization of debt
discount and expense. Funds from operations is defined as income before gains
(losses) on investments and extraordinary items (computed in accordance with
generally accepted accounting principles) plus real estate depreciation, less
preferred dividends and after adjustment for significant non-recurring items, if
any. In early 1995, the National Association of Real Estate Investment Trusts
("NAREIT") adopted a White Paper recommending certain changes to the calculation
of funds from operations. The Trust has implemented these recommendations and
has restated funds from operations to conform with the revised definition set
forth above. All funds from operations amounts in this Prospectus reflect this
restatement. The Trust did not issue any shares of Preferred Stock until April
of 1995; therefore, only the ratios of earnings to combined fixed charges and
Preferred Stock dividends and funds from operations to combined fixed
charges and Preferred Stock dividends for the nine months ended September
30, 1995 include Preferred Stock dividends.
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<PAGE>
DESCRIPTION OF DEBT SECURITIES
General
The Senior Securities are to be issued under an indenture to be dated as of
November 1, 1995, as supplemented from time to time (the "Senior Indenture"),
between the Trust and an indenture trustee to be identified satisfying the
requirements of the Senior Indenture (the "Senior Indenture Trustee"), and the
Subordinated Securities are to be issued under an indenture dated as of August
1, 1994, as supplemented from time to time (the "Subordinated Indenture"),
between the Trust and Crestar Bank (the "Subordinated Indenture Trustee"). The
term "Trustee," as used herein, shall refer to the Senior Indenture Trustee or
the Subordinated Indenture Trustee, as appropriate. The forms of the Senior
Indenture and the Subordinated Indenture (being sometimes referred to herein
collectively as the "Indentures" and individually as an"Indenture") are filed as
exhibits to the Registration Statement and will be respectively available for
inspection at the Corporate Trust Office (as such term is defined in the
Indentures) of the Senior Indenture Trustee and the Subordinated Indenture
Trustee, or as described under "Available Information." The Indentures are
subject to, and governed by, the Trust Indenture Act of 1939, as amended (the
"TIA"). The statements made hereunder relating to the Indentures and the Debt
Securities are summaries of certain provisions thereof, do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all provisions of the Indentures and the Debt Securities. All section
references appearing herein are to sections of the Indentures, and capitalized
terms used but not defined herein have the respective meanings set forth in the
Indentures and the Debt Securities.
Terms
The Debt Securities will be direct, unsecured obligations of the Trust. The
indebtedness represented by the Senior Securities will rank equally with all
other unsecured and unsubordinated indebtedness of the Trust. The indebtedness
represented by the Subordinated Securities will be subordinated in right of
payment to the prior payment in full of the Senior Debt of the Trust, as
described under "Subordination."
Each Indenture provides that the Debt Securities may be issued without limit
as to aggregate principal amount, in one or more series, in each case as
established from time to time in or pursuant to authority granted by a
resolution of the Board of Directors of the Trust or as established in one or
more indentures supplemental to such Indenture. Debt Securities may be issued
with terms different from those of Debt Securities previously issued. All Debt
Securities of 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
of the Debt Securities of such series, for issuances of additional Debt
Securities of such series (Section 301 of each Indenture).
Each Indenture provides that there may be more than one Trustee thereunder,
each with respect to one or more series of Debt Securities. Any Trustee under
either Indenture may resign or be removed with respect to one or more series of
Debt Securities, and a successor Trustee may be appointed to act with respect to
such series (Section 608 of each Indenture). In the event that two or more
persons are acting as Trustee with respect to different series of Debt
Securities, each such Trustee shall be a Trustee of a trust under the applicable
Indenture separate and apart from the trust administered by any other Trustee
(Sections 101 and 609 of each Indenture), and, except as otherwise indicated
herein, any action described herein to be taken by the Trustee may be taken by
each such Trustee with respect to, and only with respect to, the one or more
series of Debt Securities for which it is Trustee under the applicable
Indenture.
Reference is made to the Prospectus Supplement relating to the series of
Debt Securities being offered for the specific terms thereof, including:
(1) the title of such Debt Securities and whether such Debt Securities are
Senior Securities or Subordinated Securities;
(2) the aggregate principal amount of such Debt Securities and any limit on
such principal amount;
(3) the percentage of the principal amount at which such Debt Securities
will be issued and, if other than the principal amount thereof, the portion of
the principal amount payable upon declaration of acceleration of the
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<PAGE>
maturity thereof, or (if applicable) the portion of the principal amount of
such Debt Securities that is convertible into Capital Stock of the Trust, or the
method by which any such portion will be determined;
(4) if convertible, in connection with the preservation of the Trust's
status as a REIT, any applicable limitations on the ownership or transferability
of the Capital Stock of the Trust into which such Debt Securities are
convertible;
(5) the date or dates, or the method by which such date or dates will be
determined, on which the principal of such Debt Securities will be payable and
the amount of principal payable thereon;
(6) the rate or rates (which may be fixed or variable) at which such Debt
Securities will bear interest, if any, or the method by which such rate or rates
will be determined, the date or dates from which such interest will accrue or
the method by which such date or dates will be determined, the Interest Payment
Dates on which any such interest will be payable and the Regular Record Dates
for such Interest Payment Dates, or the method by which such Dates will be
determined, and the basis upon which interest will be calculated if other than
that of a 360-day year consisting of twelve 30-day months;
(7) the place or places where the principal of (and premium or Make-Whole
Amount (as defined in each Indenture), if any), interest, if any, on, and
Additional Amounts, if any, payable in respect of, such Debt Securities will be
payable, where such Debt Securities may be surrendered for registration of
transfer or exchange and where notices or demands to or upon the Trust in
respect of such Debt Securities and the applicable Indenture may be served;
(8) the period or periods within which, the price or prices (including
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 such Debt Securities may be redeemed in whole or
in part, at the option of the Trust, if the Trust is to have the option;
(9) the obligation, if any, of the Trust to redeem, repay or purchase such
Debt Securities 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 such Debt Securities will be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(10) whether such Debt Securities will be in registered or bearer form and
terms and conditions relating thereto, and, if other than $1,000 and any
integral multiple thereof, the denominations in which any registered Debt
Securities will be issuable and, if other than $5,000, the denomination or
denominations in which any bearer Debt Securities will be issuable;
(11) if other than United States dollars, the currency or currencies in
which such Debt Securities will be denominated and payable, which may be a
foreign currency or units of two or more foreign currencies or a composite
currency or currencies;
(12) whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on such Debt Securities 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 will be determined;
(13) whether the principal of (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, if any, on such Debt Securities 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 Debt 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
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<PAGE>
composite currency or currencies in which such Debt 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 Debt Securities
are to be so payable;
(14) provisions, if any, granting special rights to the Holders of such
Debt Securities 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 such Debt Securities, whether
or not such Events of Default or covenants are consistent with the Events of
Default or covenants set forth in the applicable Indenture;
(16) whether such Debt Securities will be issued in certificated or
book-entry form;
(17) the applicability, if any, of the defeasance and covenant defeasance
provisions of Article Fourteen of the applicable Indenture;
(18) whether and under what circumstances the Trust will pay Additional
Amounts as contemplated in the applicable Indenture on such Debt Securities in
respect of any tax, assessment or governmental charge and, if so, whether the
Trust will have the option to redeem such Debt Securities rather than pay such
Additional Amounts (and the terms of any such option); and
(19) any other terms of such Debt Securities not inconsistent with the
provisions of the applicable Indenture (Section 301 of each Indenture).
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities") (Section 502 of each Indenture). Special
United States federal income tax, accounting and other considerations applicable
to Original Issue Discount Securities will be described in the applicable
Prospectus Supplement.
Denominations, Interest, Registration and Transfer
Unless otherwise specified in the applicable Prospectus Supplement, the Debt
Securities of any series issued in registered form will be issuable in
denominations of $1,000 and integral multiples thereof. Unless otherwise
specified in the applicable Prospectus Supplement, the Debt Securities of any
series issued in bearer form will be issuable in denominations of $5,000
(Section 302 of each Indenture).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and premium or Make-Whole Amount, if any) and interest on any
series of Senior Securities will be payable at the Corporate Trust Office of the
Senior Indenture Trustee and the principal of (and premium or Make-Whole Amount,
if any) and interest on any series of Subordinated Securities will be payable at
the corporate trust office of the Subordinated Indenture Trustee located at 919
East Main Street, Richmond, Virginia 23219; provided that at the option of the
Trust payment of interest on any series of Debt Securities may be made by check
mailed to the address of the Person entitled thereto as it appears in the
Security Register for such series or by wire transfer of funds to such Person at
an account maintained within the United States (Sections 301, 305, 306, 307 and
1002 of each Indenture).
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the applicable Regular Record
Date and may either be paid to the Person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to the Holder of such Debt Security not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner, all as more completely described in the applicable
Indenture (Section 307 of each Indenture).
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and
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<PAGE>
tenor of different authorized denominations upon surrender of such Debt
Securities at the corporate trust office of the applicable Trustee referred to
above. In addition, subject to certain limitations imposed upon Debt Securities
issued in book-entry form, the Debt Securities of any series may be surrendered
for conversion or registration of transfer thereof at the corporate trust office
of the applicable Trustee referred to above. Every Debt Security surrendered for
conversion, registration of transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer. No service charge will be made
for any registration or transfer or exchange of any Debt Securities, but the
Trust may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith (Section 305 of each
Indenture). If the applicable Prospectus Supplement refers to any transfer agent
(in addition to the applicable Trustee) initially designated by the Trust with
respect to any series of Debt Securities, the Trust may at any time rescind the
designation of any such transfer agent or approve a change in the location
through which such transfer agent acts, except that the Trust will be required
to maintain a transfer agent in each Place of Payment for such series. The Trust
may at any time designate additional transfer agents with respect to any series
of Debt Securities (Section 1002 of each Indenture).
Neither the Trust nor either Trustee shall be required to (i) issue,
register the transfer of or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before any selection of Debt
Securities of that series to be redeemed and ending at the close of business on
the day of mailing of the relevant notice of redemption; (ii) register the
transfer of or exchange any Debt Security, or portion thereof, called for
redemption, except the unredeemed portion of any Debt Security being redeemed in
part; or (iii) issue, register the transfer of or exchange any Debt Security
which has been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Debt Security not to be so repaid (Section 305 of each
Indenture).
Merger, Consolidation or Sale
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 entity,
provided that (a) either the Trust shall be the continuing entity, or the
successor entity (if other than the Trust) formed by or resulting from any such
consolidation or merger or which shall have received the transfer of such assets
is a Person organized and existing under the laws of the United States or any
State thereof and shall expressly assume payment of the principal of (and
premium or Make-Whole Amount, if any) and interest on all of the Debt Securities
and the due and punctual performance and observance of all of the covenants and
conditions contained in each Indenture; (b) 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
under an Indenture, and no event which, after notice or the lapse of time, or
both, would become such an Event of Default, shall have occurred and be
continuing; and (c) an Officers' Certificate and legal opinion covering such
conditions shall be delivered to the Trustee (Sections 801 and 803 of each
Indenture).
Certain Covenants
Senior Indenture Limitations on Incurrence of Debt. The Senior Indenture
provides that the Trust will not, and will not permit any Subsidiary to, incur
any Debt (as defined below) if, immediately after giving effect to the
incurrence of such 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 generally
accepted accounting principles 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
(Section 1004 of the Senior Indenture). The Subordinated Indenture does not
limit the incurrence of Debt.
In addition to the foregoing limitation on the incurrence of Debt, the
Senior Indenture provides that the Trust will not, and will not permit any
Subsidiary to, incur any Debt secured by any mortgage, lien, charge, pledge,
encumbrance
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or security interest of any kind upon any of the property of the Trust or any
Subsidiary if, immediately after giving effect to the incurrence of such 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 (Section 1004 of the Senior Indenture).
In addition to the foregoing limitations on the incurrence of Debt, the
Senior Indenture provides that the Trust will not, and will not permit any
Subsidiary to, incur any Debt if the ratio of Consolidated Income Available for
Debt Service (as defined below) to the Annual Service Charge (as defined below)
for the four consecutive fiscal quarters most recently ended prior to 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 (as defined below) 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 (Section 1004 of the Senior Indenture).
As used herein,
"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.
"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 (as defined below).
"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 into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Consolidated Income Available for Debt Service" for any period means Funds
from Operations (as defined below) of the Trust and its Subsidiaries plus
amounts which have been deducted for interest on Debt of the Trust and its
Subsidiaries.
"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
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balance sheet as a capitalized lease in accordance with generally accepted
accounting principles 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 generally accepted accounting principles, and also includes, to
the extent not otherwise included, any obligation of 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) (it being understood that Debt
shall be deemed to be incurred by the Trust or any Subsidiary whenever the Trust
or such Subsidiary shall create, assume, guarantee or otherwise become liable in
respect thereof).
"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.
"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 items (without
duplication): (a) provision for Preferred Stock dividends, (b) provision for
property depreciation and amortization and (c) the effect of any adjustments
for significant non-recurring items, including any noncash charge resulting from
a change in accounting principles in determining income before gains
(losses) on investments and extraordinary items for such period, as
reflected in the financial statements of the Trust and its Subsidiaries for
such period determined on a consolidated basis in accordance with generally
accepted accounting principles.
"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 generally accepted accounting principles (but excluding
intangibles).
"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 generally accepted accounting principles.
Except as described above, the Indentures do not contain any provisions that
would limit the ability of the Trust to incur indebtedness or that would afford
Holders of the Debt Securities protection in the event of a highly leveraged or
similar transaction involving the Trust or in the event of a change of control.
However, the Articles of Incorporation of the Trust include provisions for
mandatory redemption and stopping transfer of its Common Stock designed to
preserve the Trust's status as a REIT. The Code provides that concentration of
more than 50% in value of direct or indirect ownership of Common Stock in five
or fewer individual shareholders during the last six months of any year will
result in disqualification of the Trust as a REIT. Enforcement of the provisions
of the Trust's Articles of Incorporation would prevent such concentration and,
therefore, prevent or hinder a change of control. Reference is made to the
applicable Prospectus Supplement for information with respect to any deletions
from, modifications of or additions to the Events of Default or covenants of the
Trust that are described herein, including any addition of a covenant or other
provision providing event risk or similar protection.
Existence. Except as described above under " -- Merger, Consolidation or
Sale," 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 it determines
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 the Debt
Securities of any series (Section 1005 of each Indenture).
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
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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 the Trust and its
Subsidiaries shall not be prevented from selling or otherwise disposing of for
value their properties in the ordinary course of business (Section 1006 of each
Indenture).
Insurance. The Trust will, and will cause each of its Subsidiaries to, keep
all of its insurable properties insured against loss or damage in an amount at
least equal to their then full insurable value with financially sound and
reputable insurance companies (Section 1007 of each Indenture).
Payment of Taxes and Other Claims. The Trust will pay or discharge or cause
to be paid or discharged, before the same become delinquent, (i) 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 (ii)
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 1008 of each Indenture).
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 and 15(d) 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 of Debt Securities, 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
the 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 1009 of each Indenture).
Events of Default, Notice and Waiver
Each Indenture provides that the following events are "Events of Default"
with respect to any series of Debt Securities issued thereunder: (a) default for
30 days in the payment of any installment of interest or Additional Amounts
payable on any Debt Security of such series; (b) default in the payment of the
principal of (or premium or Make-Whole Amount, if any, on) any Debt Security of
such series at its Maturity; (c) default in making any sinking fund payment as
required for any Debt Security of such series; (d) default in the performance of
any other covenant of the Trust contained in the Indenture (other than a
covenant added to the Indenture solely for the benefit of a series of Debt
Securities issued thereunder other than such series), continued for 60 days
after written notice as provided in the Indenture; (e) 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 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 acceleration having been rescinded or annulled within
10 days after written notice as provided in the Indenture; (f) the entry by a
court of competent jurisdiction of one or more judgments, orders or decrees
against the Trust or any Subsidiary in an aggregate amount (excluding amounts
fully 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 fully covered by insurance) in excess of $10,000,000 for a
period of 30 consecutive days; (g) certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator or trustee of the
Trust or any Significant Subsidiary or for all or substantially all of either of
its property; and (h) any other Event of Default provided with respect to such
series of Debt Securities (Section 501 of each
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Indenture). The term "Significant Subsidiary" means each significant
subsidiary (as defined in Regulation S-X promulgated under the Securities Act)
of the Trust.
If an Event of Default under either Indenture with respect to Debt
Securities of any series at the time Outstanding occurs and is continuing, then
in every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Debt Securities of that series may declare the
principal amount (or, if the Debt Securities of that series are Original Issue
Discount Securities or Indexed Securities, such portion of the principal amount
as may be specified in the terms thereof) of, and premium or Make-Whole Amount,
if any, on, all of the Debt Securities of that series to be due and payable
immediately by written notice thereof to the Trust (and to the Trustee if given
by the Holders). However, at any time after such declaration of acceleration
with respect to Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be) has been made,
but before a judgment or decree for payment of the money due has been obtained
by the Trustee, the Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be) may rescind and
annul such declaration and its consequences if (a) the Trust shall have
deposited with the Trustee all required payments of the principal of (and
premium or Make-Whole Amount, if any) and interest, and any Additional Amounts,
on the Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be), plus certain
fees, expenses, disbursements and advances of the Trustee and (b) all Events of
Default, other than the nonpayment of accelerated principal (or specified
portion thereof and the premium or Make-Whole Amount, if any) or interest, with
respect to the Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be) have been cured
or waived as provided in the Indenture (Section 502 of each Indenture). Each
Indenture also provides that the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of any series (or of all
Debt Securities then Outstanding under the applicable Indenture, as the case
maybe) may waive any past default with respect to such series and its
consequences, except a default (x) in the payment of the principal of (or
premium or Make-Whole Amount, if any) or interest or Additional Amounts payable
on any Debt Security of such series or (y) in respect of a covenant or provision
contained in the applicable Indenture that cannot be modified or amended without
the consent of the Holder of each Outstanding Debt Security affected thereby
(Section 513 of each Indenture).
Each Trustee is required to give notice to the Holders of Debt Securities
within 90 days of a default under the applicable Indenture; provided, however,
that such Trustee may withhold notice to the Holders of any series of Debt
Securities of any default with respect to such series (except a default in the
payment of the principal of (or premium or Make-Whole Amount, if any) or
interest or Additional Amounts payable on any Debt Security of such series or in
the payment of any sinking fund installment in respect of any Debt Security of
such series) if the Responsible Officers of such Trustee consider such
withholding to be in the interest of such Holders (Section 601 of each
Indenture).
Each Indenture provides that no Holders of Debt Securities of any series may
institute any proceedings, judicial or otherwise, with respect to such Indenture
or for any remedy thereunder, except in the case of failure of the Trustee, for
60 days, to act after it has received a written request to institute proceedings
in respect of an Event of Default from the Holders of not less than 25% in
principal amount of the Outstanding Debt Securities of such series, as well as
an offer of reasonable indemnity (Section 507 of each Indenture). This provision
will not prevent, however, any Holder of Debt Securities from instituting suit
for the enforcement of payment of the principal of (and premium or Make-Whole
Amount, if any), interest on and Additional Amounts payable with respect to,
such Debt Securities at the respective due dates thereof (Section 508 of each
Indenture).
Modification of the Indentures
Modifications and amendments of either Indenture may be made with the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Debt Securities issued under such Indenture that are affected by
such modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each such Debt Security
affected thereby, (a) change the Stated Maturity of the principal of (or premium
or Make-Whole Amount, if any), or any installment of principal of or interest or
Additional Amounts payable on, any such Debt Security; (b) reduce the principal
amount of, or the rate or amount of interest on, or any premium or Make-Whole
Amount payable on redemption of, or any Additional Amounts payable with respect
to, any such Debt Security, or reduce the amount of principal of an Original
Issue Discount Security or Make-Whole Amount, if any, that would be due and
payable upon declaration of acceleration of the maturity thereof or would be
provable in bankruptcy,
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or adversely affect any right of repayment of the Holder of any such Debt
Security; (c) change the Place of Payment, or the coin or currency, for payment
of principal of (and premium or Make-Whole Amount, if any), or interest on, or
any Additional Amounts payable with respect to, any such Debt Security; (d)
impair the right to institute suit for the enforcement of any payment on or with
respect to any such Debt Security; (e) reduce the percentage of Outstanding Debt
Securities of any series necessary to modify or amend the applicable Indenture,
to waive compliance with certain provisions thereof or certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the Indenture; or (f) modify any of the foregoing provisions or any of the
provisions relating to the waiver of certain past defaults or certain covenants,
except to increase the required percentage to effect such action or to provide
that certain other provisions may not be modified or waived without the consent
of the Holder of such Debt Security (Section 902 of each Indenture).
The Holders of not less than a majority in principal amount of Outstanding
Debt Securities issued under either Indenture have the right to waive compliance
by the Trust with certain covenants in such Indenture (Section 1012 of each
Indenture).
Subordination
Upon any distribution to creditors of the Trust in a liquidation,
dissolution or reorganization, the payment of the principal of and interest on
the Subordinated Securities will be subordinated to the extent provided in the
Subordinated Indenture in right of payment to the prior payment in full of all
Senior Debt (Sections 1601 and 1602 of the Subordinated Indenture), but the
obligation of the Trust to make payment of the principal and interest on the
Subordinated Securities will not otherwise be affected (Section 1608 of the
Subordinated Indenture). No payment of principal or interest may be made on the
Subordinated Securities at any time if a default on Senior Debt exists that
permits the holders of such Senior Debt to accelerate its maturity and the
default is the subject of judicial proceedings or the Trust receives notice of
the default (Section 1603 of the Subordinated Indenture). After all Senior Debt
is paid in full and until the Subordinated Securities are paid in full, holders
will be subrogated to the rights of holders of Senior Debt to the extent that
distributions otherwise payable to holders have been applied to the payment of
Senior Debt (Section 1607 of the Subordinated Indenture). By reason of such
subordination, in the event of a distribution of assets upon insolvency, certain
general creditors of the Trust may recover more, ratably, than holders of the
Subordinated Securities.
Senior Debt is defined in the Subordinated Indenture as the principal of and
interest on, or substantially similar payments to be made by the Trust in
respect of, the following, whether outstanding at the date of execution of the
Subordinated Indenture or thereafter incurred, created or assumed: (a)
indebtedness of the Trust for money borrowed or represented by purchase-money
obligations, (b) indebtedness of the Trust evidenced by notes, debentures, or
bonds, or other securities issued under the provisions of an indenture, fiscal
agency agreement or other instrument, (c) obligations of the Trust as lessee
under leases of property either made as part of any sale and leaseback
transaction to which the Trust is a party or otherwise, (d) indebtedness of
partnerships and joint ventures that is included in the consolidated financial
statements of the Trust, (e) indebtedness, obligations and liabilities of others
in respect of which the Trust is liable contingently or otherwise to pay or
advance money or property or as guarantor, endorser or otherwise or which the
Trust has agreed to purchase or otherwise acquire, and (f) any binding
commitment of the Trust to fund any real estate investment or to fund any
investment in any entity making such real estate investment, in each case other
than (1) any such indebtedness, obligation or liability referred to in clauses
(a) through (f) above as to which, in the instrument creating or evidencing the
same pursuant to which the same is outstanding, it is provided that such
indebtedness, obligation or liability is not superior in right of payment to the
Subordinated Securities or ranks pari passu with the Subordinated Securities,
(2) any such indebtedness, obligation or liability which is subordinated to
indebtedness of the Trust to substantially the same extent as or to a greater
extent than the Subordinated Securities are subordinated, and (3) the
Subordinated Securities (Section 101 of the Subordinated Indenture). At November
15, 1995, Senior Debt aggregated approximately $509 million. There are
no restrictions in the Subordinated Indenture upon the creation of
additional Senior Debt. However, the Senior Indenture contains limitations on
incurrence of indebtedness by the Trust.
See " -- Certain Covenants -- Senior Indenture Limitations on Incurrence of
Debt."
Discharge, Defeasance and Covenant Defeasance
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Under each Indenture, the Trust may discharge certain obligations to Holders
of any series of Debt Securities issued thereunder that have not already been
delivered to the applicable Trustee for cancellation and that either have become
due and payable or will become due and payable within one year (or scheduled for
redemption within one year) by irrevocably depositing with the applicable
Trustee, in trust, funds in such currency or currencies, currency unit or units
or composite currency or currencies in which such Debt Securities are payable in
an amount sufficient to pay the entire indebtedness on such Debt Securities in
respect of principal (and premium or Make-Whole Amount, if any) and interest and
any Additional Amounts payable to the date of such deposit (if such Debt
Securities have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be (Section 401 of each Indenture).
Each Indenture provides that, if the provisions of Article Fourteen thereof
are made applicable to the Debt Securities of or within any series pursuant to
Section 301 of such Indenture, the Trust may elect either (a) to defease and be
discharged from any and all obligations with respect to such Debt Securities
(except for the obligation to pay Additional Amounts, if any, upon the
occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such Debt Securities and the obligations to register the
transfer or exchange of such Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to maintain an office or agency in
respect of such Debt Securities and to hold moneys for payment in trust)
("defeasance") (Section 1402 of each Indenture) or (b) to be released from its
obligations with respect to such Debt Securities under provisions of each
Indenture described under " -- Certain Covenants," or, if provided pursuant to
Section 301 of each Indenture, its obligations with respect to any other
covenant, and any omission to comply with such obligations shall not constitute
a default or an Event or Default with respect to such Debt Securities ("covenant
defeasance") (Section 1403 of each Indenture), in either case upon the
irrevocable deposit by the Trust with the applicable Trustee, in trust, of an
amount, in such currency or currencies, currency unit or currency units or
composite currency or currencies in which such Debt Securities are payable at
Stated Maturity, or Government Obligations (as defined below), or both,
applicable to such Debt Securities which through the scheduled payment of
principal and interest in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium or Make-Whole Amount, if
any) and interest on such Debt Securities, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates therefor.
Such a trust may only be established if, among other things, the Trust has
delivered to the applicable Trustee an Opinion of Counsel (as specified in each
Indenture) to the effect that the Holders of such Debt Securities will not
recognize income, gain or loss for United States federal income tax purposes as
a result of such defeasance or covenant defeasance and will be subject to United
States 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 or covenant defeasance
had not occurred, and such Opinion of Counsel, in the case of defeasance, must
refer to and be based upon a ruling of the Internal Revenue Service or a change
in applicable United States federal income tax laws occurring after the date of
such Indenture (Section 1404 of each Indenture).
"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 Debt 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 the government which issued the Foreign
Currency in which the Debt 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 (Section 101 of each Indenture).
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Trust has deposited funds and/or Government Obligations to effect defeasance
or covenant defeasance with respect to Debt Securities of any series, (a) the
Holder of a Debt Security of such series is entitled to, and does, elect
pursuant to Section 301 of either Indenture or the terms of such Debt Security
to receive payment in a currency, currency unit or composite currency other than
that
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in which such deposit has been made in respect of such Debt Security, or (b) a
Conversion Event (as defined below) occurs in respect of the currency, currency
unit or composite currency in which such deposit has been made, the indebtedness
represented by such Debt Security 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 on such Debt Security as they
become due out of the proceeds yielded by converting the amount so deposited in
respect of such Debt Security into the currency, currency unit or composite
currency in which such Debt Security becomes payable as a result of such
election or such cessation of usage based on the applicable market exchange rate
(Section 1405 of each Indenture). "Conversion Event" means the cessation of use
of (i) a currency, currency unit or composite currency (other than the ECU or
other currency unit) both by the government of the country that 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. Unless otherwise provided in the
applicable Prospectus Supplement, all payments of principal of (and premium or
Make-Whole Amount, if any) and interest on any Debt Security that is payable in
a Foreign Currency that ceases to be used by its government of issuance shall be
made in United States dollars (Section 101 of each Indenture).
In the event the Trust effects covenant defeasance with respect to any Debt
Securities and such Debt Securities are declared due and payable because of the
occurrence of any Event of Default other than the Event of Default described in
clause (d) under " -- Events of Default, Notice and Waiver" with respect to
Sections 1004 to 1009, inclusive, of either Indenture (which Sections would no
longer be applicable to such Debt Securities) or described in clause (g) under "
- -Events of Default, Notice and Waiver" with respect to a covenant as to which
there has been covenant defeasance, the amount in such currency, currency unit
or composite currency in which such Debt Securities are payable, and Government
Obligations on deposit with the Trustee, will be sufficient to pay amounts due
on such Debt Securities at the time of their Stated Maturity but may not be
sufficient to pay amounts due on such Debt Securities at the time of the
acceleration resulting from such Event of Default. However, the Trust would
remain liable to make payment of such amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the provisions, if
any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
Conversion Rights
The terms and conditions, if any, upon which the Debt Securities are
convertible into Capital Stock of the Trust will be set forth in the applicable
Prospectus Supplement relating thereto. Such terms will include whether such
Debt Securities are convertible into Capital Stock of the Trust, the conversion
price (or manner of calculation thereof), the conversion period, provisions as
to whether conversion will be at the option of the Holders or the Trust, the
events requiring an adjustment of the conversion price and provisions affecting
conversion in the event of the redemption of such Debt Securities.
Book-Entry System
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of a depository (the "Depository") identified in
the Prospectus Supplement relating to such series. Global Securities, if any,
are expected be deposited with The Depository Trust Company, as Depository.
Global Securities may be issued in fully registered form and may be issued in
either temporary or permanent form. Unless and until it is exchanged in whole or
in part for the individual Debt Securities represented thereby, a Global
Security may not be transferred except as a whole by the Depository for such
Global Security to a nominee of such Depository or by a nominee of such
Depository to such Depository or another nominee of such Depository or by such
Depository or any nominee of such Depository to a successor Depository or any
nominee of such successor.
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The specific terms of the depository arrangement with respect to a series of
Debt Securities will be described in the Prospectus Supplement relating to such
series. The Trust expects that unless otherwise indicated in the applicable
Prospectus Supplement the following provisions will apply to depository
arrangements.
Upon the issuance of a Global Security, the Depository for such Global
Security or its nominee will credit on its book-entry registration and transfer
system the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depository ("Participants"). Such accounts shall be
designated by the underwriters, dealers or agents with respect to such Debt
Securities or by the Trust if such Debt Securities are offered directly by the
Trust. Ownership of beneficial interests in such Global Security will be limited
to Participants or persons that may hold interests through Participants.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the Depository for such Global Security or its nominee (with respect to
beneficial interests of Participants) and records of Participants (with respect
to beneficial interests of persons who hold through Participants). The laws of
some states require that certain purchasers of securities take physical delivery
of such securities in definitive form. Such limits and laws may impair the
ability to own, pledge or transfer beneficial interest in a Global Security.
So long as the Depository for a Global Security or its nominee is the
registered owner of such Global Security, such Depository or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as described below or in the applicable Prospectus
Supplement, owners of beneficial interest in a Global Security will not be
entitled to have any of the individual Debt Securities represented by such
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of any such Debt Securities in definitive form and
will not be considered the owners or holders thereof under the applicable
Indenture.
Payments of principal of, any premium or Make-Whole Amount and any interest
on, or any Additional Amounts payable with respect to, individual Debt
Securities represented by a Global Security registered in the name of a
Depository or its nominee will be made to the Depository or its nominee, as the
case may be, as the registered owner of the Global Security. None of the Trust,
the Trustee, any Paying Agent or the Security Registrar for such Debt Securities
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Trust expects that the Depository for any Debt Securities or its
nominee, upon receipt of any payment of principal, premium, Make-Whole Amount,
interest or Additional Amounts in respect of the Global Security representing
such Debt Securities will immediately credit Participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the records of such
Depository or its nominee. The Trust also expects that payments by Participants
to owners of beneficial interests in such Global Security held through such
Participants will be governed by standing instructions and customary practices,
as is the case with securities held for the account of customers in bearer form
or registered in street name. Such payments will be the responsibility of such
Participants.
If a Depository for any Debt Securities is at any time unwilling, unable or
ineligible to continue as depository and a successor depository is not appointed
by the Trust within 90 days, the Trust will issue individual Debt Securities in
exchange for the Global Security representing such Debt Securities. In addition,
the Trust may at any time and in its sole discretion, subject to any limitations
described in the Prospectus Supplement relating to such Debt Securities,
determine not to have any of such Debt Securities represented by one or more
Global Securities and in such event will issue individual Debt Securities in
exchange for the Global Security or Securities representing such Debt
Securities. Individual Debt Securities so issued will be issued in denominations
of $1,000 and integral multiples thereof.
Trustees
Crestar Bank has a lending relationship with the Trust.
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DESCRIPTION OF CAPITAL STOCK
General
The Trust is authorized to issue 100,000,000 shares of Common Stock, $1 par
value, and 25,000,000 shares of Preferred Stock, no par value. At November 15,
1995, there were outstanding 56,346,409 shares of Common Stock and 4,200,000
shares of Preferred Stock, consisting exclusively of Series A Preferred.
The following statements with respect to the capital stock of the Trust are
subject to the detailed provisions of the Trust's Restated Articles of
Incorporation, as amended (the "Articles"), and bylaws (the "Bylaws") as
currently in effect. These statements do not purport to be complete, or to give
full effect to the terms of the provisions of statutory or common law, and are
subject to, and are qualified in their entirety by reference to, the terms of
the Articles and Bylaws, which are filed as exhibits to the Registration
Statement.
Common Stock
Holders of Common Stock are entitled to receive dividends when and as
declared by the Board of Directors after payment of, or provision for, full
cumulative dividends on and any required redemptions of shares of Preferred
Stock then outstanding. Holders of Common Stock have one vote per share and
non-cumulative voting rights, which means that holders of more than 50% of the
shares voting can elect all of the directors if they choose to do so, and, in
such event, the holders of the remaining shares will not be able to elect any
directors. In the event of any voluntary or involuntary liquidation or
dissolution of the Trust, holders of Common Stock are entitled to share ratably
in the distributable assets of the Trust remaining after satisfaction of the
prior preferential rights of the Preferred Stock and the satisfaction of all
debts and liabilities of the Trust. Holders of Common Stock do not have
preemptive rights.
The dividend and liquidation rights of holders of the Common Stock are
specifically limited by the terms of the Series A Preferred as described below
in "-- Series A Preferred."
The Transfer Agent for the Common Stock is Mellon Securities Trust Company,
Pittsburgh, Pennsylvania. The Common Stock is traded on the New York Stock
Exchange (the "NYSE") under the symbol "UDR."
Preferred Stock
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which a
Prospectus Supplement may relate. Specific terms of any series of Preferred
Stock offered by a Prospectus Supplement will be described in that Prospectus
Supplement. The description set forth below is subject to and qualified in its
entirety by reference to the Articles of Amendment to the Articles fixing the
preferences, limitations and relative rights of a particular series of Preferred
Stock.
General. Under the Articles, the Board of Directors of the Trust is
authorized, without further shareholder action, to provide for the issuance of
up to 25,000,000 shares of Preferred Stock, in one or more series, with such
voting powers and with such designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions, as the Board of Directors shall approve.
The Preferred Stock will have the dividend, liquidation, redemption,
conversion and voting rights set forth below unless otherwise provided in the
Prospectus Supplement relating to a particular series of Preferred
Stock.Reference is made to the Prospectus Supplement relating to the particular
series of Preferred Stock offered thereby for specific terms, including: (i) the
title and liquidation preference per share of such Preferred Stock and the
number of shares offered; (ii) the price at which such series will be issued;
(iii) the dividend rate (or method of calculation), the dates on which dividends
shall be payable and the dates from which dividends shall commence to
accumulate; (iv) any redemption or sinking fund provisions of such series; (v)
any conversion provisions of such series; and (vi) any additional dividend,
liquidation, redemption, sinking fund and other rights, preferences, privileges,
limitations and restrictions of such series.
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The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a particular
series of Preferred Stock, each series will rank on a parity as to dividends and
distributions in the event of a liquidation with each other series of Preferred
Stock and, in all cases, will be senior to the Common Stock.
Dividend Rights. Holders of Preferred Stock of each series will be entitled
to receive, when, as and if declared by the Board of Directors, out of assets of
the Trust legally available therefor, cash dividends at such rates and on such
dates as are set forth in the Prospectus Supplement relating to such series of
Preferred Stock. Such rate may be fixed or variable or both and may be
cumulative, noncumulative or partially cumulative.
If the applicable Prospectus Supplement so provides, as long as any shares
of Preferred Stock are outstanding, no dividends will be declared or paid or any
distributions be made on the Common Stock, other than a dividend payable in
Common Stock, unless the accrued dividends on each series of Preferred Stock
have been fully paid or declared and set apart for payment and the Trust shall
have set apart all amounts, if any, required to be set apart for all sinking
funds, if any, for each series of Preferred Stock.
If the applicable Prospectus Supplement so provides, when dividends are not
paid in full upon any series of Preferred Stock and any other series of
Preferred Stock ranking on a parity as to dividends with such series of
Preferred Stock, all dividends declared upon such series of Preferred Stock and
any other series of Preferred Stock ranking on a parity as to dividends will be
declared pro rata so that the amount of dividends declared per share on such
series of Preferred Stock and such other series will in all cases bear to each
other the same ratio that accrued dividends per share on such series of
Preferred Stock and such other series bear to each other.
Each series of Preferred Stock will be entitled to dividends as described
in the Prospectus Supplement relating to such series, which may be based upon
one or more methods of determination. Different series of Preferred Stock may be
entitled to dividends at different dividend rates or based upon different
methods of determination. Except as provided in the applicable Prospectus
Supplement, no series of Preferred Stock will be entitled to participate in the
earnings or assets of the Trust.
Rights upon Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Trust, the holders of each series
of Preferred Stock will be entitled to receive out of the assets of the Trust
available for distribution to shareholders the amount stated or determined on
the basis set forth in the Prospectus Supplement relating to such series, which
may include accrued dividends, if such liquidation, dissolution or winding up is
involuntary or may equal the current redemption price per share (otherwise than
for the sinking fund, if any, provided for such series) provided for such series
set forth in such Prospectus Supplement, if such liquidation, dissolution or
winding up is voluntary, and on such preferential basis as is set forth in such
Prospectus Supplement. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Trust, the amounts payable with respect to
Preferred Stock of any series and any other shares of stock of the Trust ranking
as to any such distribution on a parity with such series of Preferred Stock are
not paid in full, the holders of Preferred Stock of such series and of such
other shares will share ratably in any such distribution of assets of the Trust
in proportion to the full respective preferential amounts to which they are
entitled or on such other basis as is set forth in the applicable Prospectus
Supplement. The rights, if any, of the holders of any series of Preferred Stock
to participate in the assets of the Trust remaining after the holders of other
series of Preferred Stock have been paid their respective specified liquidation
preferences upon any liquidation, dissolution or winding up of the Trust will be
described in the Prospectus Supplement relating to such series.
Redemption. A series of Preferred Stock may be redeemable, in whole or in
part, at the option of the Trust, and may be subject to mandatory redemption
pursuant to a sinking fund, in each case upon terms, at the times, the
redemption prices and for the types of consideration set forth in the Prospectus
Supplement relating to such series. The Prospectus Supplement relating to a
series of Preferred Stock which is subject to mandatory redemption shall specify
the number of shares of such series that shall be redeemed by the Trust in each
year commencing after a date to be specified, at a redemption price per share to
be specified, together with an amount equal to any accrued and unpaid dividends
thereon to the date of redemption.
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If, after giving notice of redemption to the holders of a series of
Preferred Stock, the Trust deposits with a designated bank funds sufficient to
redeem such Preferred Stock, then from and after such deposit, all shares called
for redemption will no longer be outstanding for any purpose, other than the
right to receive the redemption price and the right to convert such shares into
other classes of capital stock of the Trust. The redemption price will be stated
in the Prospectus Supplement relating to a particular series of Preferred Stock.
Except as indicated in the applicable Prospectus Supplement, the Preferred
Stock is not subject to any mandatory redemption at the option of the holder.
Sinking Fund. The Prospectus Supplement for any series of Preferred Stock
will state the terms, if any, of a sinking fund for the purchase or redemption
of that series.
Conversion Rights. The Prospectus Supplement for any series of Preferred
Stock will state the terms, if any, on which shares of that series are
convertible into shares of Common Stock or another series of Preferred Stock.
The Preferred Stock will have no preemptive rights.
Voting Rights. Except as indicated in the Prospectus Supplement relating to
a particular series of Preferred Stock, or except as expressly required by
Virginia law, a holder of Preferred Stock will not be entitled to vote. Except
as indicated in the Prospectus Supplement relating to a particular series of
Preferred Stock, in the event the Trust issues full shares of any series of
Preferred Stock, each such share will be entitled to one vote on matters on
which holders of such series of Preferred Stock are entitled to vote.
Under Virginia law, the affirmative vote of the holders of a majority of the
outstanding shares of all series of Preferred Stock, voting as a separate voting
group, will be required for (i) the authorization of any class of stock ranking
prior to or on parity with Preferred Stock or the increase in the number of
authorized shares of any such stock, (ii) any increase in the number of
authorized shares of Preferred Stock and (iii) certain amendments to the
Articles that may be adverse to the rights of Preferred Stock outstanding.
Transfer Agent and Registrar. The transfer agent, registrar and dividend
disbursement agent for a series of Preferred Stock will be selected by the Trust
and be described in the applicable Prospectus Supplement. The registrar for
shares of Preferred Stock will send notices to shareholders of any meetings at
which holders of Preferred Stock have the right to vote on any matter.
Series A Preferred
The Board of Directors has designated 4,600,000 shares of Preferred Stock as
the "9 1/4% Series A Cumulative Redeemable Preferred Stock." At November 15,
1995, there were 4,200,000 shares of Series A Preferred outstanding, The Board
of Directors may redesignate any unissued shares of Series A Preferred as all or
a part of a different series of Preferred Stock. Holders of shares of Series A
Preferred are entitled to receive, when and as declared by the Board of
Directors, out of funds legally available for the payment of dividends,
cumulative preferential cash dividends at the rate of 9 1/4% of the liquidation
preference per annum (equivalent to $2.3125 per share). In the event of any
liquidation, dissolution or winding up of the Trust, the holders of shares of
Series A Preferred are entitled to be paid out of the assets of the Trust
legally available for distribution to its stockholders a liquidation preference
of $25.00 per share, plus an amount equal to any accrued and unpaid dividends to
the date of payment, before any distribution of assets is made to holders of
Common Stock or any other capital stock that ranks junior to the Series A
Preferred as to liquidation rights. The Series A Preferred is not redeemable
prior to April 24, 2000. On and after April 24, 2000, the Trust, at its option
upon not less than 30 nor more than 60 days' written notice, may redeem shares
of the Series A Preferred, in whole or in part, at any time or from time to
time, for cash at a redemption price of $25.00 per share, plus accrued
dividends. The Series A Preferred has no stated maturity and will not be subject
to any sinking fund or mandatory redemption (except as provided under
"Description of Capital Stock -- Redemption and Restrictions on Transfer").
The transfer agent, registrar and dividend disbursing agent for the Series A
Preferred is Mellon Securities Trust Company, Pittsburgh, Pennsylvania. The
Series A Preferred is traded on the NYSE under the symbol "UDR-PRA."
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Dividend Restrictions
Covenants in its loan agreements with certain lenders restrict the payment
of distributions in excess of the sum of (i) current "cash flow," (ii) varying
additional amounts and (iii) the proceeds of capital stock offerings subsequent
to various dates, all as defined in the particular loan agreement. The covenants
do not prohibit the Trust from paying distributions in order to continue its
qualification as a REIT under the Code.
Affiliated Transactions
The Virginia Stock Corporation Act contains provisions governing "Affiliated
Transactions" designed to deter uninvited takeovers of Virginia corporations.
These provisions, with several exceptions discussed below, require approval of
material acquisition transactions between a Virginia corporation and any holder
of more than 10% of any class of its outstanding voting shares (an "Interested
Shareholder") by the holders of at least two-thirds of the remaining voting
shares. For three years following the time that the Interested Shareholder
becomes an owner of 10% of the outstanding voting shares, Virginia corporations
cannot engage in an Affiliated Transaction with such Interested Shareholder
without approval of two-thirds of the voting shares other than those shares
beneficially owned by the Interested Shareholder, and majority approval of the
"Disinterested Directors." At the expiration of the three year period, the
statute requires approval of Affiliated Transactions by two-thirds of the voting
shares other than those beneficially owned by the Interested Shareholder absent
an exception. The principal exceptions to the special voting requirement apply
to transactions proposed after the three year period has expired and require
either that the transaction be approved by a majority of the corporation's
Disinterested Directors or that the transaction satisfy the fair-price
requirements of the law.
The Virginia Stock Corporation Act also provides that shares acquired in a
transaction that would cause the acquiring person's voting strength to cross any
of three thresholds (20%, 33%, or 50%) have no voting rights unless granted by a
majority vote of shares not owned by the acquiring person or any officer or
employee-director of the Trust. An acquiring person may require the Trust to
hold a special meeting of shareholders to consider the matter within 50 days of
its request.
Redemption and Restrictions on Transfer
In order to preserve the Trust's status as a REIT as defined in the Code,
the Trust can redeem or stop the transfer of its shares. The Articles provide
that the Trust is organized to qualify as a REIT. Because the Code provides that
the concentration of more than 50% in value of the direct or indirect ownership
of its shares in five or fewer individual shareholders during the last six
months of any year would result in the disqualification of the Trust as a REIT,
the Articles provide that the Trust shall have the power (i) to redeem that
number of concentrated shares sufficient in the opinion of the Board of
Directors of the Trust to maintain or bring the direct or indirect ownership of
shares into conformity with the requirements of the Code, and (ii) to stop the
transfer of shares to any person whose acquisition thereof would, in the opinion
of the Trust's Board of Directors, result in such disqualification. The per
share redemption price of any shares redeemed by the Trust pursuant to this
provision shall be the last reported sale price for the shares as of the
business day preceding the day on which notice of redemption is given. The Board
of Directors of the Trust can require shareholders to disclose in writing to the
Trust such information with respect to ownership of its shares as it deems
necessary to comply with the REIT provisions of the Code.
REIT Qualification
The Trust operates in a manner intended to qualify for treatment as a REIT
under the Code. In general, a REIT which distributes to its shareholders at
least 95% of its taxable income (other than net capital gain) for a taxable year
and which meets certain other conditions will not be subject to federal income
taxation on income (including net capital gain) distributed for that year. If
the Trust fails to qualify in any taxable year, it will be taxed for federal
income tax purposes as a corporation for that year and distributions to
shareholders will not be deductible by the Trust in computing its taxable
income. Under such circumstances, the Trust also will be disqualified from being
treated as a REIT under the Code for the ensuing four fiscal years. Failure to
qualify could result in the Trust's incurring indebtedness and perhaps
liquidating investments in order to pay the resultant taxes.
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PLAN OF DISTRIBUTION
The Trust may sell Offered Securities to or through underwriters or may sell
Offered Securities to investors directly or through designated agents. Any such
underwriter or agent involved in the offer and sale of the Offered Securities
will be named in the applicable Prospectus Supplement.
Underwriters may offer and sell the Offered Securities at a fixed price or
prices, which may be changed, or from time to time at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Trust also may, from time to time, authorize underwriters
acting as agents to offer and sell the Offered Securities upon the terms and
conditions set forth in any Prospectus Supplement. In connection with the sale
of Offered Securities, underwriters may be deemed to have received compensation
from the Trust in the form of underwriting discounts or commissions and may also
receive commissions from purchasers of Offered Securities for whom they may act
as agent. Underwriters may sell Offered Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions (which may be changed from time to time) from the underwriters
and/or from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Trust to underwriters or agents in
connection with the offering of Offered Securities and any discounts,
concessions or commissions allowed by underwriters to participating dealers will
be set forth in the applicable Prospectus Supplement. Underwriters, dealers and
agents participating in the distribution of the Offered Securities may be deemed
to be underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of the Offered Securities may be deemed to be
underwriting discounts and commissions under the Securities Act. Underwriters,
dealers and agents may be entitled, under agreements entered into with the
Trust, to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Trust will
authorize dealers acting as the Trust's agents to solicit offers by certain
institutions to purchase Offered Securities from the Trust at the public
offering price set forth in such Prospectus Supplement pursuant to Delayed
Delivery Contracts ("Contracts") providing for payment and delivery on the date
or dates stated in such Prospectus Supplement. Each Contract will be for an
amount not less than, and the principal amount of Offered Securities sold
pursuant to Contracts shall not be less nor more than, the respective amounts
stated in such Prospectus Supplement. Institutions with which Contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and other institutions, but will in all cases be subject to the
approval of the Trust. Contracts will not be subject to any conditions except
(i) the purchase by an institution of the Offered Securities covered by its
Contract shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject and (ii)
the Trust shall have sold to such underwriters the total principal amount of the
Offered Securities less the principal amount thereof covered by Contracts. A
commission indicated in the Prospectus Supplement will be paid to agents and
underwriters soliciting purchases of Offered Securities pursuant to Contracts
accepted by the Trust. Agents and underwriters shall have no responsibility in
respect of the delivery or performance of Contracts.
Certain of the underwriters and their affiliates may be customers of, engage
in transactions with, and perform services for, the Trust in the ordinary course
of business.
LEGAL OPINIONS
The validity of the Offered Securities will be passed upon for the Trust by
Hunton & Williams, Richmond, Virginia. Brown & Wood, New York, New York will act
as counsel to any underwriters, dealers or agents.
EXPERTS
The consolidated financial statements of the Trust incorporated by
reference in its annual report on Form 10-K for the year ended December 31,
1994 have been audited by Ernst & Young LLP, independent auditors, as set forth
in their report thereon incorporated by reference therein and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
The combined statement of rental operations of Brittingham Square
Apartments, The Greens at Cedar Chase Apartments, The Greens at Cross Court
Apartments, The Greens at Falls Run Apartments, The Greens at Hilton Run
Apartments, The Greens at Hollymead Apartments, The Greens at Schumaker Pond
Apartments, The Greens of
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Constant Friendship Apartments and The Manor at England Run Apartments, included
in the Trust's Current Report on Form 8-K, dated June 30, 1995, incorporated by
reference herein, has been incorporated herein in reliance upon the report dated
May 24, 1995, of L. P. Martin & Company, P.C., independent auditors, also
incorporated by reference herein, and upon the authority of such firm as experts
in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses in connection with the offering are as follows:
Securities and Exchange Commission registration fee.................. $ 80,000
Accounting fees and expenses......................................... 150,000
Blue Sky fees and expenses........................................... 45,000
Legal fees and expenses.............................................. 170,000
Trustees' fees and expenses.......................................... 30,000
Rating agency fees................................................... 100,000
Printing ............................................................ 75,000
Miscellaneous........................................................ 50,000
--------
TOTAL....................................................... $700,000
Item 15. Indemnification of Officers and Directors
Directors and officers of the Trust may be indemnified against
liabilities, fines, penalties, and claims imposed upon or asserted against them
as provided in the Virginia Stock Corporation Act and the Articles of
Incorporation. Such indemnification covers all costs and expenses reasonably
incurred by a director or officer. The Board of Directors, by a majority vote of
a quorum of disinterested directors or, under certain circumstances, independent
counsel appointed by the Board of Directors, must determine that the director or
officer seeking indemnification was not guilty of willful misconduct or a
knowing violation of the criminal law. In addition, the Virginia Stock
Corporation Act and the Trust's Articles of Incorporation may under certain
circumstances eliminate the liability of directors and officers in a shareholder
or derivative proceeding.
If the person involved is not a director or officer of the Trust, the
Board of Directors may cause the Trust to indemnify to the same extent allowed
for directors and officers of the Trust such person who was or is a party to a
proceeding, by reason of the fact that he is or was an employee or agent of the
Trust, or is or was serving at the request of the Trust as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise.
Item 16. Exhibits
1 (a) - Form of Underwriting Agreement for Debt Securities
1 (b) - Form of Underwriting Agreement for Preferred Stock and Common Stock
4(i)(a) Specimen Common Stock certificate (filed as Exhibit 4(i) to the
Trust's Annual Report on Form 10-K for the year ended December 31,
1993, and incorporated by reference herein)
4(i)(b) Form of Preferred Stock certificate (filed as Exhibit 4(i)(b) to the
Trust's Form S-3 Registration Statement (File No. 33-55159) filed with
the Commission on August 19, 1994, and incorporated by reference
herein)
4 (i)(b)(1) - Form of certificate for 9 1/4% Series A Cumulative Redeem-
able Preferred Stock (filed as Exhibit 1(e) to the Trust's Form
8-A Registration Statement dated April 24, 1995, and incorporated
by reference herein)
II-1
<PAGE>
4 (i)(c) Restated Articles of Incorporation (filed as Exhibit 3 to the
Trust's Quarterly Report on Form 10-Q for the quarter ended June
30, 1992, and incorporated by reference herein)
4 (i)(d) Amendment of Restated Articles of Incorporation (filed as Exhibit
6(a)(2) to the Trust's Form 8-A Registration Statement dated
April 19, 1990, and incorporated by reference herein)
4 (i)(e) Amendment of Restated Articles of Incorporation (filed as Exhibit
1(c) to the Trust's Form 8-A Registration Statement dated April
24, 1995, and incorporated by reference herein)
4 (i)(f) Form of Articles of Amendment setting forth the designations of
the Preferred Stock (filed as Exhibit 4(i)(f) to the Trust's Form
S-3 Registration Statement (File No. 33-55159) filed with the
Commission on August 19, 1994, and incorporated by reference
herein)
4(i)(g) Bylaws (filed as Exhibit 4(c) to the Trust's Form S-3
Registration Statement (Registration No. 33-44743) filed with the
Commission on December 31, 1991, and incorporated by reference
herein)
4 (i)(h) Loan Agreement dated as of November 7, 1991, between the Trust
and Aid Association for Lutherans (filed as Exhibit 6(c)(1) to
the Trust's Form 8-A Registration Statement dated April 19, 1990,
and incorporated by reference herein)
4 (i)(i) Note Purchase Agreement dated as of February 19, 1992, between
the Trust and Principal Mutual Life Insurance Company (filed as
Exhibit 6(c)(3) to the Trust's Form 8-A Registration Statement
dated April 19, 1990, and incorporated by reference herein)
4(i)(j) Note Purchase Agreement dated as of January 15, 1993, between the
Trust and CIGNA Property 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 (filed
as Exhibit 6(c)(5) to the Trust's Form 8-A Registration Statement
dated April 19, 1990, and incorporated by reference herein)
4(i)(k) Credit Agreement dated as of December 15, 1994, between the Trust
and First Union National Bank of Virginia (filed as Exhibit
6(c)(6) to the Trust's Form 8-A Registration Statement dated
April 19, 1990, and incorporated by reference herein)
4 (i)(l) Form of Senior Indenture dated as of November 1, 1995, between
the Trust and a Trustee to be identified
4(i)(m) Form of Subordinated Indenture dated as of August 1, 1994,
between the Trust and Crestar Bank, as Trustee
4 (i)(n) Form of Senior Security
4(i)(o) Form of Subordinated Security (filed as Exhibit 4(i)(p) to the
Trust's Form S-3 Registration Statement (File No. 33-55159) filed
with the Commission on August 19, 1994, and incorporated by
reference herein)
5 Opinion of Hunton & Williams
II-2
<PAGE>
12 Statement regarding computation of ratios
23 (a) Consent of Ernst & Young LLP
23 (b) Consent of L. P. Martin & Company, P.C.
23 (c) Consent of Hunton & Williams (included in Exhibit 5)
24 Power of Attorney (located on the signature page of this
Registration Statement)
25 (a) Statement of Eligibility and Qualification on Form T-1 of Trustee
under the Senior Indenture, under the Trust Indenture Act of 1939
(to be filed by amendment)
25(b) Statement of Eligibility and Qualification on Form T-1 of Crestar
Bank, as Trustee under the Subordinated Indenture, under the
Trust Indenture Act of 1939 (to be filed by amendment)
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
registration statement (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933; (ii) to reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the registration statement; provided, however, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and (iii) to
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement; provided, however, that the
undertakings set forth in subparagraphs (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this registration
statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof; and
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15 above or
otherwise, the registrant has been advised that the in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that
II-3
<PAGE>
a claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted against the registrant by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in the form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to file an application for
purposes of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Richmond, Commonwealth of Virginia on the 15th day of
November, 1995.
UNITED DOMINION REALTY TRUST, INC.
By /s/ JOHN P. MCCANN
John P. McCann
President and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on November 15, 1995. Each of the undersigned officers and
directors of the registrant hereby constitutes John P. McCann and James Dolphin,
either of whom may act, his true and lawful attorneys-in-fact with full power to
sign for him and in his name in the capacities indicated below and to file any
and all amendments to the registration statement filed herewith, making such
changes in the registration statement as the registrant deems appropriate, and
generally to do all such things in his name and behalf in his capacity as an
officer and director to enable the registrant to comply with the provisions of
the Securities Act of 1933 and all requirements of the Securities and Exchange
Commission.
Signature Title & Capacity
/s/ JOHN P. MCCANN President, Chief Executive Officer (Principal
________________________ Executive Officer) and Director
John P. McCann
/s/ JAMES DOLPHIN Senior Vice President, Chief Financial
________________________ Officer, (Principal Financial and
James Dolphin Accounting Officer) and Director
Director
________________________
Jeff C. Bane
/s/ ROBERT P. BUFORD Director
________________________
Robert P. Buford
/s/ R. TOMS DALTON, JR Director
________________________
R. Toms Dalton, Jr.
/s/ BARRY M. KORNBLAU Director
________________________
Barry M. Kornblau
Director
________________________
John C. Lanford
Director
________________________
H. Franklin Minor
/s/ C. HARMON WILLIAMS, JR. Director
________________________
C. Harmon Williams, Jr.
II-5
Exhibit 1(a)
10/27/95 draft
United Dominion Realty Trust, Inc.
Debt Securities
Underwriting Agreement
__________ , 199_
[To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.]
Ladies and Gentlemen:
From time to time United Dominion Realty Trust, Inc., a Virginia
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its debt securities (the "Securities")
specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities
<PAGE>
specified therein. Each Pricing Agreement shall specify the aggregate principal
amount of such Designated Securities, the initial public offering price of such
Designated Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Two registration statements on Form S-3 (File Nos. 33-55159 and
33-____) (the "Initial Registration Statements") in respect of the Securities
have been filed with the Securities and Exchange Commission (the "Commission");
the Initial Registration Statements and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to such registration statements, but including all
documents incorporated by reference in the prospectus contained in the latest
registration statement, to the Representatives for each of the other
Underwriters, have been declared effective by the Commission in such form; other
than a registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act), which became effective upon
filing, no other document with respect to the Initial Registration Statements or
document incorporated by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than prospectuses filed
pursuant to Rule 424(b) of the rules and regulations of the Commission under the
Act each in the form heretofore delivered to the Representatives); and no stop
order suspending the effectiveness of the Initial Registration Statements, any
post-effective amendment thereto or the Rule 462(b) Registration Statement, if
any, has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the Initial
Registration Statements or filed with the Commission
2
<PAGE>
pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statements and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the Initial Registration
Statements at the time such part of the registration statements became
effective but excluding Form T-1, each as amended at the time such part
of the Initial Registration Statements became effective or such part of
the Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities, in
the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
is hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Sections 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement; any reference to the Prospectus as amended or supplemented
shall be deemed to refer to the Prospectus as amended or supplemented
in relation to the applicable Designated Securities in the form in
which it is filed with the Commission pursuant to Rule 424(b) under the
Act in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing; and if
the Company elects to rely on Rule 434 under the Act, any reference to
the Prospectus shall be deemed to include, without limitation, the form
of prospectus and the abbreviated term sheet, taken together, provided
to the Underwriters by the Company in reliance on Rule 434 under the
Act (the "Rule 434 Prospectus"));
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission
3
<PAGE>
thereunder, and none of such documents contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Securities;
(d) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the Commonwealth of
Virginia, with full power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus; and
the Company is duly qualified to transact business in all jurisdictions
in which the conduct of its business requires such qualification except
where the failure to so qualify would not have a material
4
<PAGE>
adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the
Company;
(e) Each subsidiary of the Company has been duly organized and is
validly existing as a corporation or limited liability company in good
standing under the laws of the jurisdiction of its incorporation or
organization, with corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus and is duly qualified to transact business in all
jurisdictions in which the conduct of its business requires such
qualification except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of such
subsidiary; all of the issued and outstanding capital stock of each
such corporate subsidiary has been duly authorized and validly issued,
is fully paid and non-assessable and is owned by the Company free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and the Company and one such corporate subsidiary are
the only members of the Company's limited liability company
subsidiaries and own the entire membership interest in each such
subsidiary free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity;
(f) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock, total assets or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus;
(g) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(h) The Securities have been duly and validly
5
<PAGE>
authorized, and, when Designated Securities are issued and delivered
pursuant to this Agreement and the Pricing Agreement with respect to
such Designated Securities, such Designated Securities will have been
duly executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture, which will be substantially in the
form filed as an exhibit to the Registration Statement; the Indenture
has been duly authorized and duly qualified under the Trust Indenture
Act and, at the Time of Delivery for such Designated Securities (as
defined in Section 4 hereof), the Indenture will constitute a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Indenture
conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(i) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture,
this Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company is
a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Articles of
Incorporation or By-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company of
the transactions contemplated by this Agreement or any Pricing
Agreement or the Indenture, except such as have been, or will have been
prior to the Time of Delivery, obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(j) The statements set forth in the Prospectus under the captions
"Description of Debt Securities" and "Description of Notes", insofar
as they purport to constitute a summary of the
6
<PAGE>
terms of the Securities, and under the captions "Description of Capital
Stock," "Plan of Distribution" and "Underwriting", insofar as they
purport to describe the provisions of the laws and documents referred
to therein, are accurate, complete and fair;
(k) Neither the Company nor any of its subsidiaries is in violation
of its Articles of Incorporation or By-laws or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(l) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(m) The financial statements together with related notes and
schedules of the Company and its subsidiaries as set forth or
incorporated by reference in the Registration Statement present fairly
the financial position and the results of operations of the Company and
its subsidiaries at the indicated dates and for the indicated periods.
Such financial statements have been prepared in accordance with
generally accepted principles of accounting, consistently applied
throughout the periods involved, and all adjustments necessary for a
fair presentation of results for such periods have been made. The
summary financial and statistical data included in the Prospectus
present fairly the information shown therein and have been compiled on
a basis consistent with the financial statements presented therein;
(n) The Company and its subsidiaries have good and marketable title
to, or valid and enforceable leasehold estates in, all items of real
and personal property referred to in the Prospectus as owned or leased
by them, in each case free and clear of all liens, encumbrances,
claims, security interests and defects, other than those referred to in
the Prospectus or which are not material in amount. Each lease of real
property by the Company or any of its subsidiaries as lessor requiring
annual lease payments in excess of $100,000
7
<PAGE>
is the legal, valid and binding obligation of the lessee in accordance
with its terms (except that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought and to the Bankruptcy Act) and the
rents which at present have remained due and unpaid for more than 30
days are not payable under leases such that, were no further rental
payments to be received under such leases, the financial condition or
results of operations of the Company and its subsidiaries would be
materially adversely affected thereby. The Company has no reason to
believe that the lessee under any lease (excluding leases for which
rent payments due for the remainder of such lease are less than
$500,000) calling for annual lease payments in excess of $500,000 is
not financially capable of performing its obligations thereunder;
(o) The Company has filed all Federal, local and foreign income tax
returns which have been required to be filed and has paid all taxes
indicated by said returns and all assessments received by it to the
extent that such taxes have become due and are not being contested in
good faith;
(p) The Company and each of its subsidiaries hold all material
licenses, certificates and permits from governmental authorities which
are necessary to the conduct of their respective businesses; and
neither the Company nor any of its subsidiaries has infringed any
patents, patent rights, trade names, trademarks or copyrights, which
infringement is material to the business of the Company or any of its
subsidiaries;
(q) With respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim, the Company
has met the requirements for qualification as a real estate investment
trust under Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the "Code"), and the Company's present and
contemplated operations, assets and income continue to meet such
requirements;
(r) The conditions for use of registration statements on Form S-3
set forth in the General Instructions on Form S-3 have been satisfied
and the Company is entitled to use such form for the transaction
contemplated herein;
(s) The Company has no knowledge of (a) the unlawful presence of
any hazardous substances, hazardous materials, toxic substances or
waste materials (collectively, "Hazardous Materials") on any of the
properties owned by it or any of its subsidiaries, or of (b) any
unlawful spills, releases, discharges or disposal of Hazardous
Materials that have
8
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occurred or are presently occurring off such properties as a result of
any construction on or operation and use of such properties which
presence or occurrence would materially adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company or any of its subsidiaries. In connection with
the construction on or operation and use of the properties owned by the
Company or any of its subsidiaries, the Company represents that it has
no knowledge of any material failure to comply with all applicable
local, state and federal environmental laws, regulations, ordinances
and administrative and judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and disposal of
any Hazardous Materials;
(t) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(u) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes; and
(v) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, [and list of other
accountants whose reports appear or are incorporated by reference in
the Registration Statement or the Prospectus, who have certified
certain financial statements of [names of all other applicable
entities]] are [each] independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of such
Designated Securities, the several Underwriters propose to offer such Designated
Securities for sale upon the terms and conditions set forth in the Prospectus as
amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least twenty-four hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price
9
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therefor by certified or official bank check or checks, payable to the order of
the Company in the funds specified in such Pricing Agreement, all in the manner
and at the place and time and date specified in such Pricing Agreement or at
such other place and time and date as the Representatives and the Company may
agree upon in writing, such time and date being herein called the "Time of
Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) If the Company does not elect to rely on Rule 434 under the
Act, immediately following execution and delivery of the applicable
Pricing Agreement, to prepare the Prospectus as amended or supplemented
in relation to the applicable Designated Securities in a form approved
by the Representatives and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of business
on the business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b), or if
the Company elects to rely on Rule 434 under the Act, immediately
following execution and delivery of the applicable Pricing Agreement,
to prepare an abbreviated term sheet relating to the Designated
Securities in a form approved by the Representatives that complies with
the requirements of Rule 434 under the Act and to file such form of
Rule 434 Prospectus complying with Rule 434(c)(2) of the Act pursuant
to Rule 424(b) under the Act not later than the Commission's close of
business on the business day following the execution and delivery of
the Pricing Agreement relating to the applicable Designated Securities
or if applicable, such earlier time as may be required by Rule 424(b);
to make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Securities and prior to the Time
of Delivery for such Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of such Securities,
and during such same period to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any
10
<PAGE>
amended Prospectus has been filed with the Commission, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of any
such stop order or of any such order preventing or suspending the use
of any prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m. New York City time on the New York business
day next succeeding the date of the applicable Pricing Agreement and
from time to time, to furnish the Underwriters with copies of the
Prospectus in New York City as amended or supplemented in such
quantities as the Representatives may reasonably request, and, if the
delivery of a prospectus is required at any time in connection with the
offering or sale of the Securities and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
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<PAGE>
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company which mature more than one year
after such Time of Delivery and which are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives;
(f) To use the net proceeds received by it from the sale of the
Securities in the manner specified in the Prospectus under the caption
"Use of Proceeds"; and
(g) To continue to elect to qualify as a "real estate investment
trust" under the Code, and to use its best efforts to continue to meet
the requirements to qualify as a "real estate investment trust".
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto (including each abbreviated term sheet delivered by the
Company pursuant to Rule 434 under the Act) and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Indenture, any Blue Sky and Legal Investment Surveys, closing
documents (including any compilation thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and Legal
Investment Surveys; (iv) any
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<PAGE>
fees charged by securities rating services for rating the Securities; (v) any
filing fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the
cost of preparing the Securities; (vii) the fees and expenses of any Trustee and
any agent of any Trustee and the fees and disbursements of counsel for any
Trustee in connection with any Indenture and the Securities; and (viii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Brown & Wood, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated the
Time of Delivery for such Designated Securities, with respect to the
matters covered in paragraphs (i), (vi), (vii), (viii), (x), (xi) and
(xiv) of subsection (c) below as well as such other related matters as
the Representatives may reasonably request, and such counsel shall
13
<PAGE>
have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Hunton & Williams, counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time
of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of
the Commonwealth of Virginia, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of
the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable;
(iii) The Company is duly qualified to transact business
in all jurisdictions in which the conduct of its business
requires such qualification, or in which the failure to
qualify would have a materially adverse effect upon the
business of the Company;
(iv) Each subsidiary of the Company has been duly
organized and is validly existing as a corporation or limited
liability company in good standing under the laws of the
jurisdiction of its incorporation or organization, with
corporate power and authority or authority as a limited
liability company to own its properties and conduct its
business as described in the Prospectus as amended or
supplemented; each such subsidiary is duly qualified to
transact business in all jurisdictions in which the conduct of
its business requires such qualification, or in which the
failure to qualify would have a materially adverse effect upon
the business of such subsidiary; all of the issued and
outstanding capital stock of each such corporate subsidiary
has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and the Company and one such corporate
subsidiary are the only members of the Company's limited
liability company subsidiaries and own the entire membership
interest in each such subsidiary free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim
or equity;
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<PAGE>
(v) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(vii) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute
valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture; and the Designated
Securities and the Indenture conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(viii) The Indenture has been duly authorized, executed
and delivered by the parties thereto and constitutes a valid
and legally binding instrument, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(ix) The issue and sale of the Designated Securities being
delivered at such Time of Delivery and the compliance by the
Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing
Agreement with respect to the Designated Securities and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such
counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets of
the Company is subject, nor will such actions result in any
15
<PAGE>
violation of the provisions of the Articles of Incorporation
or By-laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of
its properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Designated Securities being delivered at such Time of
Delivery or the consummation by the Company of the
transactions contemplated by this Agreement or such Pricing
Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution
of the Designated Securities by the Underwriters;
(xi) The statements set forth in the Prospectus under the
captions "Description of Debt Securities" and "Description of
Notes", insofar as they constitute a summary of documents
referred to therein or matters of law are accurate summaries
and fairly and correctly present the information called for
with respect to such documents and matters;
(xii) The Company is not required to be registered
under the Investment Company Act;
(xiii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder;
and they have no reason to believe that any of such documents,
when they became effective or were so filed, as the case may
be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission,
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the
16
<PAGE>
circumstances under which they were made when such
documents were so filed, not misleading; and
(xiv) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations
thereunder; if applicable, the Rule 434 Prospectus complies as
to form in all material respects with the requirements of Rule
434 under the Act; although they do not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in
subsection (xi) of this Section 7(c), they have no reason to
believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company
prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the
Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of the Time
of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and they do not know of
any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the
17
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Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by
reference or described as required;
(d) Hunton & Williams, counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time
of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that the Company has
qualified to be taxed as a real estate investment trust pursuant to
Sections 856 through 860 of the Code for its most recently ended fiscal
year and for the four fiscal years immediately preceding such year, and
the Company's organization and contemplated method of operation are
such as to enable it to continue to so qualify for its current fiscal
year;
(e) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at the Time of Delivery
for such Designated Securities, the independent accountants of the
Company who have certified the financial statements of the Company and
its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives a
letter, dated the effective date of the Registration Statement or the
date of the most recent report filed with the Commission containing
financial statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such effective
date, and a letter dated such Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended
prior to the date of the Pricing Agreement relating to the Designated
Securities any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities, and (ii) since the respective
dates as of which information is given in the Prospectus as amended
prior to the date of the Pricing Agreement relating to the Designated
Securities there shall not have been any change in the capital stock,
total assets or long-term debt of the Company or any of its
subsidiaries or
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<PAGE>
any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities, the effect of which, in any such
case described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in
the Prospectus as first amended or supplemented relating to the
Designated Securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities or
preferred stock;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New
York business day next succeeding the date of the applicable Pricing
Agreement; and
(j) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for
the Designated Securities a certificate or certificates of
19
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officers of the Company satisfactory to the Representatives as to the
accuracy of the representations and warranties of the Company herein at
and as of such Time of Delivery, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and
(f) of this Section and as to such other matters as the Representatives
may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto (including the information deemed to be a part
of the Registration Statement pursuant to Rule 434 under the Act, if
applicable), or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto (including
the information deemed to be a part of the Registration Statement pursuant to
Rule 434
20
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under the Act, if applicable), or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is
21
<PAGE>
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason
22
<PAGE>
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter
23
<PAGE>
or Underwriters by the Representatives and the Company as provided in subsection
(a) above, the aggregate principal amount of such Designated Securities which
remains unpurchased does not exceed one-eleventh of the aggregate principal
amount of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
24
<PAGE>
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
25
<PAGE>
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us [one for the Company and each of the Representatives plus one
for each counsel] counterparts hereof.
Very truly yours,
United Dominion Realty Trust,
Inc.
By:...........................
Name:
Title:
Accepted as of the date hereof:
[Name of Representative]
26
<PAGE>
ANNEX I
Pricing Agreement
[Names of Representative(s)]
As Representatives of the several
Underwriters named in Schedule I hereto,
[Name and Address of Representative]
__________, 19__
Dear Sirs:
United Dominion Realty Trust, Inc., a Virginia corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated ___________, 199_ (the "Underwriting Agreement"),
between the Company on the one hand and [names of Representatives named therein]
on the other hand, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
<PAGE>
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us [one for the Company and each of the Representatives plus one for
each counsel] counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
United Dominion Realty Trust,
Inc.
By:..........................
Name:
Title:
Accepted as of the date hereof:
......................................
[(Name(s) of Co-Representative(s)]
On behalf of each of the Underwriters
2
<PAGE>
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
$
------------
Total $
============
<PAGE>
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus
accrued interest from to [and
accrued amortization, if any, from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus
accrued interest from to [and accrued
amortization, if any, from to ]
FORM OF DESIGNATED SECURITIES:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[New York] Clearing House funds
Indenture:
Indenture dated , 199_, between the Company
and ________________________________, as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates]
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than
through the sinking fund, in whole or in part at the option of
the Company, in the amount of [$ ] or an integral
multiple thereof,
[on or after , at the following redemption prices
(expressed in percentages of principal amount). If [redeemed
1
<PAGE>
on or before , %, and if] redeemed during the
12-month period beginning ,
REDEMPTION
YEAR PRICE
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.] [on any interest payment
date falling on or after
, , at the election of the Company, at a
redemption price equal to the principal amount thereof,
plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a
sinking fund to retire [$ ] principal amount of
Designated Securities on in each of the years
through at 100% of their principal amount plus accrued interest] [,
together with [cumulative] [noncumulative] redemptions at the option of
the Company to retire an additional [$ ] principal amount of Designated
Securities in the years through
at 100% of their principal amount plus accrued interest].
[If Securities are extendable Debt Securities, insert--
EXTENDABLE PROVISIONS:
Securities are repayable on , [insert date and years], at the option of
the holder, at their principal amount with accrued interest. Initial
annual interest rate will be %, and thereafter annual interest rate
will be adjusted on , and to a rate not less than % of the effective
annual interest rate on U.S. Treasury obligations with -year maturities
as of the [insert date 15 days prior to maturity date] prior to such
[insert maturity date].]
[If Securities are Floating Rate debt Securities, insert--
2
<PAGE>
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each ,
, and ] [to an annual rate of %
above the average rate for -year
[month][securities][certificates of deposit] issued by
and [insert names of banks].] [and the annual interest rate
[thereafter] [from through ] will be the interest yield equivalent of
the weekly average per annum market discount rate for -month Treasury
bills plus % of Interest Differential (the excess, if any, of (i) then
current weekly average per annum secondary market yield for -month
certificates of deposit over (ii) then current interest yield
equivalent of the weekly average per annum market discount rate for
-month Treasury bills); [from and thereafter the rate will be the then
current interest yield equivalent plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
TIME OF DELIVERY:
CLOSING LOCATION FOR DELIVERY OF SECURITIES:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]*:
* A description of particular tax, accounting or other unusual features
(such as the addition of event risk provisions) of the Securities should be set
forth, or referenced to an attached and accompanying description, if necessary
to ensure agreement as to the terms of the Securities to be purchased and sold.
Such a description might appropriately be in the form in which such features
will be described in the Prospectus Supplement for the offering.
<PAGE>
ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and included
or incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial statements
of the Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been separately furnished to the
representative or representatives of the Underwriters (the "Representatives")
such term to include an Underwriter or Underwriters who act without any firm
being designated as its or their representatives;
(iii) They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus and/or included
in the Company's quarterly report on Form 10-Q incorporated by reference into
the Prospectus as indicated in their reports thereon copies of which have been
separately furnished to the Representatives; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that caused
them to believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published rules and
regulations;
1
<PAGE>
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K
for the most recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial statements
for five such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their attention as a
result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference
in the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange
Act and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus or
included in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree
2
<PAGE>
with the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for the most recent fiscal
year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited income
statement data and balance sheet items included in the Prospectus and
referred to in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements included
or incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than three days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders' equity or
other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes, increases
or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the
specified date referred to in Clause (E) there were any decreases in
consolidated net revenues, rental income or operating profit or the
total or per share amounts
3
<PAGE>
of consolidated net income or income before gains (losses) on
investments and extraordinary items or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vii) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
4
Exhibit 1(b)
Draft: 10/27/95
UNITED DOMINION REALTY TRUST, INC.
(a Virginia corporation)
Common Stock and Preferred Stock
UNDERWRITING AGREEMENT
______________, 199__
[Name[s] of Representative[s]]
Dear Sirs:
United Dominion Realty Trust, Inc., a Virginia corporation (the
"Company"), proposes to issue and sell shares of common stock, par value $1.00
per share (the "Common Stock"), and shares of preferred stock without par value
(the "Preferred Stock") from time to time, in one or more offerings on terms to
be determined at the time of sale. Each series of Preferred Stock may vary as to
the specific number of shares, title, stated value, liquidation preference,
issuance price, ranking, dividend rate or rates (or method of calculation),
dividend payment dates, any redemption or sinking fund requirements, any
conversion provisions and any other variable terms as set forth in the
applicable Articles of Amendment to the Company's Articles of Incorporation
(each, the "Articles of Amendment") relating to such series of Preferred Stock.
As used herein, "Securities" shall mean the Common Stock and the Preferred
Stock. As used herein, "you" and "your", unless the context otherwise requires,
shall mean the parties to whom this Agreement is addressed together with the
other parties, if any, identified in the applicable Terms Agreement (as
hereinafter defined) as additional co-managers with respect to Underwritten
Securities (as hereinafter defined) purchased pursuant thereto.
Whenever the Company determines to make an offering of Securities
through you or through an underwriting syndicate managed by you, the Company
will enter into an agreement (the "Terms Agreement") providing for the sale of
such Securities (the "Underwritten Securities") to, and the purchase and
offering
<PAGE>
thereof by, you and such other underwriters, if any, selected by you as have
authorized you to enter into such Terms Agreement on their behalf (the
"Underwriters", which term shall include you whether acting alone in the sale of
the Underwritten Securities or as a member of an underwriting syndicate and any
Underwriter substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the offering of Underwritten Securities shall specify the number of
Underwritten Securities of each class or series to be initially issued (the
"Initial Underwritten Securities"), the names of the Underwriters participating
in such offering (subject to substitution as provided in Section 10 hereof), the
number of Initial Underwritten Securities which each such Underwriter severally
agrees to purchase, the names of such of you or such other Underwriters acting
as co-managers, if any, in connection with such offering, the price at which the
Initial Underwritten Securities are to be purchased by the Underwriters from the
Company, the initial public offering price, the time, date and place of delivery
and payment, any delayed delivery arrangements and any other variable terms of
the Initial Underwritten Securities (including, but not limited to, current
ratings (in the case of Preferred Stock only), designations, liquidation
preferences, conversion provisions, redemption provisions and sinking fund
requirements). In addition, each Terms Agreement shall specify whether the
Company has agreed to grant to the Underwriters an option to purchase additional
Underwritten Securities to cover over-allotments, if any, and the number of
Underwritten Securities subject to such option (the "Option Securities"). As
used herein, the term "Underwritten Securities" shall include the Initial
Underwritten Securities and all or any portion of the Option Securities agreed
to be purchased by the Underwriters as provided herein, if any. The Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written telecommunication
between you and the Company. Each offering of Underwritten Securities through
you or through an underwriting syndicate managed by you will be governed by this
Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-_______) (which also
constitutes post-effective amendment No. 1 to registration statement No.
33-55159) for the registration of the Securities (including the Underwritten
Securities) and certain of the Company's debt securities under the Securities
Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"), and the Company has filed such
amendments thereto as may have been required prior to the execution of the
applicable Terms Agreement. Such registration
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statement (as amended, if applicable) has been declared effective by the
Commission. Such registration statement (as amended, if applicable), on the one
hand, and the prospectus constituting a part thereof and each prospectus
supplement relating to the offering of Underwritten Securities provided to the
Underwriters for use (whether or not such prospectus supplement is required to
be filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations)
(the "Prospectus Supplement"), on the other hand, including in each case all
documents incorporated therein by reference and the information, if any, deemed
to be a part thereof pursuant to Rule 430A(b) or Rule 434 of the 1933 Act
Regulations, as from time to time amended or supplemented pursuant to the 1933
Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"), or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus", respectively; provided, however, that a Prospectus Supplement
shall be deemed to have supplemented the Prospectus only with respect to the
offering of Underwritten Securities to which it relates. All references in this
Agreement to financial statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration Statement or
the Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include, without limitation, any document filed under the
1934 Act which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be. If the Company
elects to rely on Rule 434 under the 1933 Act Regulations, all references to the
Prospectus shall be deemed to include, without limitation, the form of
prospectus and the abbreviated term sheet, taken together, provided to the
Underwriters by the Company in reliance on Rule 434 under the 1933 Act (the
"Rule 434 Prospectus"). If the Company files a registration statement to
register a portion of the Securities and relies on Rule 462(b) for such
registration statement to become effective upon filing with the Commission (the
"Rule 462 Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to be to both the registration statement
referred to above (No. 33-_____) and the Rule 462 Registration Statement, as
each such registration statement may be amended pursuant to the 1933 Act.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to you, as of the date hereof,
and to you and each other Underwriter named in the applicable Terms Agreement,
as of the date thereof (such latter
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date being referred to herein as a "Representation Date"), as
follows:
(i) The Registration Statement and the Prospectus, at the time
the Registration Statement became effective, complied, and as of the
applicable Representation Date will comply, in all material respects
with the requirements of the 1933 Act and 1933 Act Regulations; the
Registration Statement, at the time the Registration Statement became
effective, did not and as of the applicable Representation Date will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus, as of the date
hereof does not, and as of the applicable Representation Date and at
Closing Time (as hereinafter defined) will not, include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any Underwriter
through you expressly for use in the Registration Statement or the
Prospectus.
(ii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the
1933 Act, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"), and, when
read together with the other information in the Prospectus, at the time
the Registration Statement became effective and as of the applicable
Representation Date or Closing Time or during the period specified in
Section 3(f), did not and will not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(iii) The accountants who certified the financial statements and
supporting schedules included in, or incorporated by reference into,
the Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
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(iv) The financial statements and supporting schedules included in,
or incorporated by reference into, the Registration Statement and the
Prospectus present fairly in all material respects the financial
position of the Company and its subsidiaries as of the dates indicated
and the results of their operations for the periods specified; except
as otherwise stated in the Registration Statement and the Prospectus,
said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis;
and the supporting schedules included or incorporated by reference in
the Registration Statement and the Prospectus present fairly in all
material respects the information required to be stated therein.
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) there has been no material adverse change
or development involving a prospective material adverse change in or
affecting the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not occurring in
the ordinary course of business, (B) there have been no transactions or
acquisitions entered into by the Company or any of its subsidiaries
other than those arising in the ordinary course of business, and (C)
except for regular quarterly dividends on the Company's shares of
common stock, or dividends declared, paid or made in accordance with
the terms of any series of the Company's preferred stock, there has
been no dividend or distribution of any kind declared, paid or made by
the Company on any series of its common stock or preferred stock.
(vi) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the Commonwealth of
Virginia, with full power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus; and
the Company is duly qualified to transact business in all jurisdictions
in which the conduct of its business requires such qualification except
where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company.
(vii) Each subsidiary of the Company has been duly organized and is
validly existing as a corporation or limited liability company in good
standing under the laws of the jurisdiction of its incorporation or
organization, with corporate power and authority or power and authority
as a
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limited liability company to own, lease and operate its properties and
conduct its business as described in the Prospectus and is duly
qualified to transact business in all jurisdictions in which the
conduct of its business requires such qualification except where the
failure to so qualify would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of such subsidiary; all of the issued and
outstanding capital stock of each such corporate subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable
and is owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; and the Company
and one such corporate subsidiary are the only members of the Company's
limited liability company subsidiaries and own the entire membership
interest in each such subsidiary free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(viii) The authorized, issued and outstanding shares of common and
preferred stock of the Company are as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations, agreements or the conversion of convertible securities
referred to in the Registration Statement including, without
limitation, the exercise or grant of stock options pursuant to the
Company's stock option plan or the issuance of shares pursuant to the
Company's dividend reinvestment plan, stock purchase and loan plan or
employees' stock purchase plan); and such shares of common stock and
preferred stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable and are not subject to
preemptive or other similar rights.
(ix) The applicable Underwritten Securities have been duly
authorized by the Company for issuance and sale pursuant to this
Agreement and, when issued and delivered pursuant to this Agreement
against payment of the consideration therefor specified in the
applicable Terms Agreement or any Delayed Delivery Contract (as
hereinafter defined), such Underwritten Securities will be duly and
validly issued, fully paid and non-assessable; the Preferred Stock, if
applicable, conforms to the provisions of the Articles of Amendment;
such Underwritten Securities conform in all material respects to all
statements relating thereto contained in the Prospectus; and the
issuance of such Underwritten Securities is not subject to preemptive
or other similar rights.
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(x) If applicable, the shares of Common Stock issuable upon
conversion of any of the Preferred Stock will have been duly and
validly authorized and reserved for issuance upon such conversion or
exercise by all necessary corporate action and such shares, when issued
upon such conversion or exercise, will be duly and validly issued,
fully paid and non-assessable, and the issuance of such shares upon
such conversion or exercise will not be subject to preemptive or other
similar rights; the Common Stock so issuable conforms in all material
respects to all statements relating thereto contained in the
Prospectus.
(xi) Neither the Company nor any of its subsidiaries is in
violation of its Articles of Incorporation or By-Laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease (other than as disclosed in the Prospectus) or
other instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of its subsidiaries is
subject and which default is of material significance in respect of the
business or financial condition of the Company and its subsidiaries
considered as one enterprise; and the execution, delivery and
performance of this Agreement and the applicable Terms Agreement and
the consummation of the transactions contemplated herein and therein
and compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action
on the part of the Company, and will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any property or assets of the Company or
any of its subsidiaries is subject, or result in any violation of the
Articles of Incorporation or By-Laws of the Company or any law,
administrative regulation or administrative or court decree.
(xii) With respect to all tax periods regarding which the
Internal Revenue Service is or will be entitled to assert any claim,
the Company has met the requirements for qualification as a real estate
investment trust under Sections 856 through 860 of the Internal Revenue
Code of 1986, as amended (the "Code"), and the Company's present and
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contemplated operations, assets and income continue to meet such
requirements.
(xiii) The Company is not and, after giving effect to the
offering and sale of the Underwritten Securities, will not be an
"investment company" or an entity "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "1940 Act").
(xiv) The conditions for use of registration statements on
Form S-3 set forth in the General Instructions on Form S-3 have been
satisfied and the Company is entitled to use such form for the
transaction contemplated herein and in any applicable Terms Agreement.
(xv) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against the Company or
any of its subsidiaries which is required to be disclosed in the
Prospectus (other than as disclosed therein) or which might result in
any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, or which
might materially and adversely affect the properties or assets thereof
or which might materially and adversely affect the consummation of this
Agreement or the applicable Terms Agreement or the transactions
contemplated herein and therein; all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party
or of which any of their respective property is the subject which are
not described in the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not
material; and there are no contracts or documents of the Company or any
of its subsidiaries which would be required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been filed as exhibits to the Registration
Statement.
(xvi) No authorization, approval or consent of any
governmental authority or agency is necessary in connection with the
consummation by the Company of the transactions contemplated by this
Agreement or the applicable Terms Agreement, except such as may be
required under the 1933 Act or the 1933 Act Regulations or state
securities or Blue Sky laws.
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(xvii) The Company has full right, power and authority to
enter into this Agreement, the applicable Terms Agreement and the
Delayed Delivery Contracts, if any, and this Agreement has been, and as
of the applicable Representation Date, the applicable Terms Agreement
and the Delayed Delivery Contracts, if any, will have been, duly
authorized, executed and delivered by the Company.
(xviii) The Company and its subsidiaries have good and
marketable title to, or valid and enforceable leasehold estates in, all
items of real and personal property referred to in the Prospectus as
owned or leased by them, in each case free and clear of all liens,
encumbrances, claims, security interests and defects, other than those
referred to in the Prospectus or which are not material in amount. Each
lease of real property by the Company or any of its subsidiaries as
lessor requiring annual lease payments in excess of $100,000 is the
legal, valid and binding obligation of the lessee in accordance with
its terms (except that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought and to the Bankruptcy Act) and the
rents which at present have remained due and unpaid for more than 30
days are not payable under leases such that, were no further rental
payments to be received under such leases, the financial condition or
results of operations of the Company and its subsidiaries would be
materially adversely affected thereby. The Company has no reason to
believe that the lessee under any lease (excluding leases for which
rent payments due for the remainder of such lease are less than
$500,000) calling for annual lease payments in excess of $500,000 is
not financially capable of performing its obligations thereunder.
(xix) The Company has filed all Federal, local and foreign
income tax returns which have been required to be filed and has paid
all taxes indicated by said returns and all assessments received by it
to the extent that such taxes have become due and are not being
contested in good faith.
(xx) The Company and each of its subsidiaries hold all
material licenses, certificates and permits from governmental
authorities which are necessary to the conduct of their respective
businesses; and neither the Company nor any of its subsidiaries has
infringed any patents, patent rights, trade names, trademarks or
copyrights, which infringement is material to the business of the
Company or any of its subsidiaries.
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(xxi) The Company has no knowledge of (a) the unlawful
presence of any hazardous substances, hazardous materials, toxic
substances or waste materials (collectively, "Hazardous Materials") on
any of the properties owned by it or any of its subsidiaries, or of (b)
any unlawful spills, releases, discharges or disposal of Hazardous
Materials that have occurred or are presently occurring off such
properties as a result of any construction on or operation and use of
such properties which presence or occurrence would materially adversely
affect the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company or any of its
subsidiaries. In connection with the construction on or operation and
use of the properties owned by the Company or any of its subsidiaries,
the Company represents that it has no knowledge of any material failure
to comply with all applicable local, state and federal environmental
laws, regulations, ordinances and administrative and judicial orders
relating to the generation, recycling, reuse, sale, storage, handling,
transport and disposal of any Hazardous Materials.
(xxii) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes.
(b) Any certificate signed by any officer of the Company and delivered
to you or to counsel for the Underwriters in connection with the offering of the
Underwritten Securities shall be deemed a representation and warranty by the
Company to each Underwriter participating in such offering as to the matters
covered thereby on the date of such certificate and, unless subsequently amended
or supplemented, at the applicable Representation Date subsequent thereto.
Section 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the applicable Terms Agreement relating to
the Initial Underwritten Securities, an option to the Underwriters named in such
Terms Agreement, severally and not jointly, to
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purchase up to the number of Option Securities set forth therein at the same
price per Option Security as is applicable to the Initial Underwritten
Securities less an amount equal to any dividend paid by the Company and payable
on the Initial Underwritten Securities and not payable on such Option
Securities. Such option, if granted, will expire 30 days (or such lesser number
of days as may be specified in the applicable Terms Agreement) after the
Representation Date relating to the Initial Underwritten Securities, and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Underwritten Securities upon notice by you to the
Company setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time, date and place of delivery
(a "Date of Delivery") shall be determined by you, but shall not be later than
seven full business days nor earlier than two full business days after the
exercise of said option, nor in any event prior to Closing Time, unless
otherwise agreed upon by you and the Company. If the option is exercised as to
all or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in the applicable Terms Agreement bears to the total number of Initial
Underwritten Securities (except as otherwise provided in the applicable Terms
Agreement), subject to such adjustments as you in your discretion shall make to
eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at the
office of Brown & Wood, 58th Floor, One World Trade Center, New York, New York
10048-0557, or at such other place as shall be agreed upon by you and the
Company, at 10:00 A.M., New York City time, on the third business day (unless
postponed in accordance with the provisions of Section 10 herein) following the
date of the applicable Terms Agreement or, if pricing takes place after 4:30
P.M., New York City time, on the date of the applicable Terms Agreement, on the
fourth business day (unless postponed in accordance with the provisions of
Section 10) following the date of the applicable Terms Agreement or at such
other time as shall be agreed upon by you and the Company (each such time and
date of payment and delivery being referred to herein as the "Closing Time"). In
addition, in the event that any or all of the Option Securities are purchased by
the Underwriters, payment of the purchase price for, and delivery of
certificates representing, such Option Securities, shall be
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made at the above-mentioned offices of Brown & Wood, or at such other place as
shall be agreed upon by you and the Company on each Date of Delivery as
specified in the notice from you to the Company. Unless otherwise specified in
the applicable Terms Agreement, payment shall be made to the Company by
certified or official bank check or checks in New York Clearing House funds
payable to the order of the Company against delivery to you for the respective
accounts of the Underwriters of the certificates for the Underwritten Securities
to be purchased by them. The Underwritten Securities shall be in such authorized
denominations and registered in such names as you may request in writing at
least one business day prior to the Closing Time or Date of Delivery, as the
case may be. The Underwritten Securities, which may be in temporary form, will
be made available for examination and packaging by you on or before 3:00 P.M. on
the first business day prior to the Closing Time or the Date of Delivery, as the
case may be.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Underwritten Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee specified in the applicable Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at the
Closing Time as is specified in the applicable Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional investors of the types described
in the Prospectus. At the Closing Time, the Company will enter into Delayed
Delivery Contracts (for not less than the minimum number of Underwritten
Securities per Delayed Delivery Contract specified in the applicable Terms
Agreement) with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate number of
Underwritten Securities in excess of that specified in the applicable Terms
Agreement. The Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
You shall submit to the Company, at least two business days prior to
the Closing Time, the names of any institutional investors with which it is
proposed that the Company will enter into Delayed Delivery Contracts and the
number of Underwritten Securities to be purchased by each of them, and the
Company will advise you, at least one business day prior to the Closing Time, of
the names of the institutions with which the making of Delayed Delivery
Contracts is approved by the Company and the number of
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Underwritten Securities to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be reduced
by the number of Underwritten Securities covered by Delayed Delivery Contracts,
as to each Underwriter as set forth in a written notice delivered by you to the
Company; provided, however, that the total number of Underwritten Securities to
be purchased by all Underwriters shall be the total number of Underwritten
Securities covered by the applicable Terms Agreement, less the number of
Underwritten Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company. The Company covenants with you,
and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) If the Company does not elect to rely on Rule 434 under the 1933
Act Regulations, immediately following the execution of the applicable Terms
Agreement, the Company will prepare a Prospectus Supplement setting forth the
number of Underwritten Securities covered thereby and their terms not otherwise
specified in the Prospectus pursuant to which the Underwritten Securities are
being issued, the names of the Underwriters participating in the offering and
the number of Underwritten Securities which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers in connection with
the offering, the price at which the Underwritten Securities are to be purchased
by the Underwriters from the Company, the initial public offering price, if any,
the selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as you and the Company deem appropriate
in connection with the offering of the Underwritten Securities; and the Company
will promptly transmit copies of the Prospectus Supplement to the Commission for
filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to
the Underwriters named therein as many copies of the Prospectus (including such
Prospectus Supplement) as you shall reasonably request. If the Company elects to
rely on Rule 434 under the 1933 Act Regulations, immediately following the
execution of the applicable Terms Agreement, the Company will prepare an
abbreviated term sheet that complies with the requirements of Rule 434 under the
1933 Act Regulations and will provide the Underwriters with copies of the form
of Rule 434 Prospectus, in such number as you shall reasonably request, and, if
necessary, promptly file or transmit for filing with the Commission the form of
Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in
accordance with Rule 424(b) of the 1933 Act Regulations.
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(b) The Company will notify you immediately, and confirm such notice in
writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus to be filed
pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission,
(iv) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (v) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose; and the Company will make every reasonable effort
to prevent the issuance of any such stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
(c) At any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company will give you notice of its intention to file or prepare
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise
(including any revised prospectus which the Company proposes for use by the
Underwriters in connection with an offering of Underwritten Securities which
differs from the Prospectus on file at the Commission at the time the
Registration Statement first becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of
the 1933 Act Regulations), and will furnish you with copies of any such
amendment or supplement or other documents proposed to be used or filed a
reasonable amount of time prior to such proposed filing and, unless required by
law, will not file or use any such amendment or supplement or other documents in
a form to which you or counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to each Underwriter a signed copy of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith and documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act) as you reasonably
request and will also deliver to each Underwriter a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(including documents incorporated by reference but without exhibits).
(e) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act in connection with
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sales of the Underwritten Securities, such number of copies of the Prospectus
(as amended or supplemented) as such Underwriter may reasonably request for the
purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or
the 1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters, to amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend or
supplement the Registration Statement or the Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations, then the Company
will promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise,
as may be necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements.
(g) The Company will endeavor, in cooperation with the Underwriters, to
qualify the Underwritten Securities and the Common Stock issuable upon
conversion of the Preferred Stock, if any, for offering and sale under the
applicable securities laws and real estate syndication laws of such states and
other jurisdictions of the United States as you may designate; and in each
jurisdiction in which the Underwritten Securities and the Common Stock issuable
upon conversion of the Preferred Stock, if any, have been so qualified, the
Company will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for so long as may be
required for the distribution of the Underwritten Securities and the Common
Stock issuable upon conversion of the Preferred Stock, if any; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction where it is not so qualified.
(h) With respect to each sale of Underwritten Securities, the Company
will make generally available to its security holders as soon as practicable,
but not later than 90 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158 of the
1933 Act Regulations) covering a twelve month period beginning not later than
the first day of the Company's fiscal quarter next following
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the "effective date" (as defined in such Rule 158) of the Registration
Statement.
(i) The Company will continue to elect to qualify as a "real estate
investment trust" under the Code and will use its best efforts to continue to
meet the requirements to qualify as a "real estate investment trust."
(j) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, will file promptly all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the
time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) The Company will not, during a period of 90 days from the date of
the applicable Terms Agreement, with respect to the Underwritten Securities
covered thereby, without your prior written consent, offer or sell, grant any
option for the sale of, or enter into any agreement to sell, any securities of
the same class or series or ranking on a parity with such Underwritten
Securities (other than the Underwritten Securities which are to be sold pursuant
to such Terms Agreement), or if such Terms Agreement relates to Preferred Stock
that is convertible into Common Stock, any Common Stock or any security
convertible into Common Stock (except for Common Stock issued pursuant to
reservations, agreements, employee benefit plans, dividend reinvestment plans,
or employee and director stock option plans), except as may otherwise be
provided in the applicable Terms Agreement.
(l) If the applicable Terms Agreement relates to Common Stock, the
Company will cause each officer of the Company who owns Common Stock to agree
not to offer for sale, sell or otherwise dispose of any shares of Common Stock
during the 90 days following the date of such Terms Agreement without your prior
written consent.
(m) If the Preferred Stock is convertible into Common Stock, the
Company will reserve and keep available at all times, free of preemptive rights
or other similar rights, a sufficient number of shares of Common Stock for the
purpose of enabling the Company to satisfy any obligations to issue such shares
upon conversion of the Preferred Stock.
(n) If the Preferred Stock is convertible into Common Stock, the
Company will use its best efforts to list the shares of Common Stock issuable
upon conversion of the Preferred Stock on the New York Stock Exchange or such
other national exchange on which the Company's Common Stock is then listed.
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(o) The Company will use its best efforts to list the Underwritten
Securities on the New York Stock Exchange.
(p) The Company has complied and will comply with all of the provisions
of Florida H.B. 1771, Section 1, P. 17,130 of the Florida Securities and
Investors Act, and all regulations thereunder relating to issuers doing business
with Cuba.
(q) The Company will use the net proceeds received by it from the sale of
the Underwritten Securities in the manner specified in the Prospectus under the
caption "Use of Proceeds."
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement or the
applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the cost of printing, filing and distributing to the Underwriters copies of this
Agreement and the applicable Terms Agreement, (iii) the preparation, issuance
and delivery of the Underwritten Securities to the Underwriters, (iv) the fees
and disbursements of the Company's counsel and accountants, (v) the
qualification of the Underwritten Securities and the Common Stock issuable upon
conversion of the Preferred Stock, if any, under securities laws and real estate
syndication laws in accordance with the provisions of Section 3(g), including
filing fees and the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey, (vi) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto, and of
the Prospectus and any amendments or supplements thereto, including each
abbreviated term sheet delivered by the Company pursuant to Rule 434 of the 1933
Act Regulations, (vii) the cost of reproducing and distributing to the
Underwriters copies of the Blue Sky Survey, (viii) any fees charged by
nationally recognized statistical rating organizations for the rating of the
Underwritten Securities, (ix) the fees and expenses, if any, incurred with
respect to the listing of the Underwritten Securities or the Common Stock
issuable upon conversion of the Preferred Stock, if any, on any national
securities exchange, and (x) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers, Inc.
If the applicable Terms Agreement is canceled or terminated by you in
accordance with the provisions of Section 5 or Section 9(b)(i), the Company
shall reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
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Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company herein contained, to the accuracy
of the statements of the Company's officers made in any certificate pursuant to
the provisions hereof, to the performance by the Company of all of its covenants
and other obligations hereunder, and to the following further conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission and (ii) if
Preferred Stock is being offered, the rating assigned by any nationally
recognized statistical rating organization to any preferred stock of the Company
as of the date of the applicable Terms Agreement shall not have been lowered
since such date nor shall any such rating organization have publicly announced
that it has placed the Company on what is commonly termed a "watch list" for
possible downgrading.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of Hunton
& Williams, counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, to the effect that:
(i) The Company has been duly organized and is
validly existing as a corporation and in good standing under
the laws of the Commonwealth of Virginia, with corporate power
and authority to own its properties and conduct its business
as described in the Prospectus as amended or supplemented.
(ii) The Company is duly qualified to transact
business in all jurisdictions in which the conduct of its
business requires such qualification, or in which the failure
to qualify would have a materially adverse effect upon the
business of the Company.
(iii) Each subsidiary of the Company has been duly
organized and is validly existing as a corporation or limited
liability company in good standing under the laws of the
jurisdiction of its incorporation or organization, with
corporate power and authority or power and authority as a
limited liability company to own its properties and conduct
its business as described in the Prospectus as amended or
supplemented;
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each such subsidiary is duly qualified to transact business in
all jurisdictions in which the conduct of its business
requires such qualification, or in which the failure to
qualify would have a materially adverse effect upon the
business of such subsidiary; all of the issued and outstanding
capital stock of each such corporate subsidiary has been duly
authorized and validly issued, is fully paid and
non-assessable and is owned by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and the Company one such corporate subsidiary
are the only members of the Company's limited liability
company subsidiaries and own the entire membership interest in
each such subsidiary free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(iv) The Company has authorized and outstanding
capital stock as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements or the conversion of
convertible securities referred to in the Registration
Statement including, without limitation, the exercise or grant
of stock options pursuant to the Company's stock option plan
or the issuance of shares pursuant to the Company's dividend
reinvestment plan, stock purchase and loan plan or employees'
stock purchase plan); the authorized capital stock of the
Company has been duly authorized; and the outstanding shares
of capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable and are
not subject to preemptive or other similar rights arising by
operation of law or, to the best of such counsel's knowledge,
otherwise.
(v) The applicable Underwritten Securities have been
duly and validly authorized by all necessary corporate action
and, when issued and delivered pursuant to this Agreement
against payment of the consideration therefor specified in the
applicable Terms Agreement or the Delayed Delivery Contracts,
the applicable Underwritten Securities will be validly issued,
fully paid and non-assessable; the Underwritten Securities are
not subject to preemptive or other similar rights arising by
operation of law or, to the best of such counsel's knowledge,
otherwise; and the Preferred Stock, if applicable, conforms to
the provisions of the Articles of Amendment.
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(vi) If applicable, the shares of Common Stock
issuable upon conversion of any of the Preferred Stock have
been duly and validly authorized and reserved for issuance
upon such conversion or exercise by all necessary corporate
action and such shares, when issued upon such conversion or
exercise, will be duly and validly issued and will be fully
paid and non-assessable, and the issuance of such shares upon
such conversion or exercise will not be subject to preemptive
or other similar rights arising by operation of law or, to
the best of such counsel's knowledge, otherwise.
(vii) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, has
been duly authorized, executed and delivered by the Company.
(viii) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(ix) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, as
of their respective effective or issue dates, comply as to
form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations; it being understood,
however, that no opinion need be rendered with respect to the
financial statements, schedules and other financial and
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus. If applicable, the
Rule 434 Prospectus conforms in all material aspects to the
requirements of Rule 434 under the 1933 Act Regulations.
(x) Each document filed pursuant to the 1934 Act
(other than the financial statements, schedules and other
financial and statistical data included therein, as to which
no opinion need be rendered) and incorporated or deemed to be
incorporated by reference in the Prospectus complied when so
filed (or as when amended prior to the Representation Date)
as to form in all material respects with the 1934 Act and the
1934 Act Regulations.
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(xi) If applicable, the relative rights, preferences,
interests and powers of the Preferred Stock are as set forth
in the Articles of Amendment relating thereto, and all such
provisions are valid under applicable Virginia law; and the
form of certificate used to evidence the Preferred Stock is
in due and proper form under applicable Virginia law, and
complies in all material respects with all applicable
statutory requirements.
(xii) The Underwritten Securities and, if applicable,
the Common Stock issuable upon conversion of the Preferred
Stock conform in all material respects to the statements
relating thereto contained in the Prospectus.
(xiii) To the best of such counsel's knowledge and
information, there are no legal or governmental proceedings
pending or threatened which are required to be disclosed in
the Prospectus, other than those disclosed therein, and all
pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any
of the property of the Company or its subsidiaries is the
subject which are not described in the Prospectus, including
ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material to the business of
the Company and its subsidiaries considered as one
enterprise.
(xiv) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required
to be described or referred to in the Registration Statement
or the Prospectus or to be filed as exhibits to the
Registration Statement other than those described or referred
to therein or filed as exhibits thereto, the descriptions
thereof or references thereto are correct, and, to the best
of such counsel's knowledge and information, no default
exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument so described, referred to or filed which
would have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs
or business prospects of the Company and its subsidiaries
considered as one enterprise.
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(xv) No authorization, approval or consent of any
court or governmental authority or agency is required that
has not been obtained in connection with the consummation by
the Company of the transactions contemplated by this
Agreement and the applicable Terms Agreement, except such as
may be required under the 1933 Act, the 1934 Act and state
securities laws or real estate syndication laws.
(xvi) To the best of such counsel's knowledge and
information, the execution and delivery of this Agreement and
the applicable Terms Agreement and the consummation of the
transactions contemplated herein and therein and compliance
by the Company with its obligations hereunder and thereunder
will not conflict with or constitute a breach of, or default
under or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is
a party or by which they may be bound or to which any of the
property or assets of the Company or any of its subsidiaries
is subject, nor will such action result in violation of the
provisions of the Articles of Incorporation or By-Laws of the
Company or any law, administrative regulation or court
decree.
(xvii) The Company is not required to be registered
under the 1940 Act.
(xviii) The statements under the caption "Description
of Capital Stock" in the Prospectus, insofar as such
statements constitute a summary of documents referred to
therein or matters of law, are accurate summaries and fairly
and correctly present the information called for with respect
to such documents and matters.
(2) The favorable opinion, dated as of Closing Time, of Hunton
& Williams, counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, to the effect that the Company has
qualified to be taxed as a real estate investment trust pursuant to
Sections 856 through 860 of the Code for its most recently ended fiscal
year and for the four fiscal years immediately preceding such year, and
the Company's organization and contemplated method of operation are
such as to enable it to continue to so qualify for its current fiscal
year.
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(3) The favorable opinion, dated as of the Closing Time, of
Brown & Wood, counsel for the Underwriters, with respect to the due
organization of the Company and the matters set forth in (v) to (ix),
inclusive, and (xii), (xv) and (xviii) of subsection (b)(1) of this
Section. In rendering their opinion, Brown & Wood may rely as to
matters of Virginia law upon the opinion of Hunton & Williams.
(4) In giving their opinions required by subsections (b)(1)
and (b)(3), respectively, of this Section, Hunton & Williams and Brown
& Wood shall each additionally state that nothing has come to their
attention that would lead them to believe that the Registration
Statement or any amendment thereto (excluding the financial statements
and financial schedules included or incorporated by reference therein,
as to which such counsel need express no belief), at the time it became
effective or at the time an Annual Report on Form 10-K was filed by the
Company with the Commission (whichever is later), or at the
Representation Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (excluding the
financial statements and financial schedules included or incorporated
by reference therein, as to which such counsel need express no belief),
at the Representation Date or at Closing Time, included or includes an
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(c) At Closing Time, there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business; and you shall have
received a certificate of the President and Chief Executive Officer and the
Senior Vice President and Chief Financial Officer of the Company, dated as of
such Closing Time, to the effect that (i) there has been no such material
adverse change and (ii) the representations and warranties in Section 1 are true
and correct with the same force and effect as though such Closing Time were a
Representation Date. As used in this Section 5(c), the term "Prospectus" means
the Prospectus in the form first used to confirm sales of the Underwritten
Securities.
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(d) At the time of execution of the applicable Terms Agreement, you
shall have received from Ernst & Young LLP a letter dated such date, in form and
substance satisfactory to you, to the effect that (i) they are independent
accountants with respect to the Company and its subsidiaries within the meaning
of the 1933 Act and the 1934 Act and the applicable published rules and
regulations thereunder; (ii) it is their opinion that the consolidated financial
statements and supporting schedules of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement and the Prospectus
and covered by their opinions therein comply in form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1934 Act and
the related published rules and regulations thereunder; (iii) based upon limited
procedures set forth in detail in such letter (which shall include, without
limitation, the procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial information as described in
SAS No. 71, Interim Financial Information, with respect to the unaudited
condensed consolidated financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement), nothing
came to their attention that caused them to believe that (A) any material
modifications should be made to the unaudited financial statements and financial
statement schedules of the Company and its subsidiaries included or incorporated
by reference in the Registration Statement and the Prospectus for them to be in
conformity with generally accepted accounting principles, (B) the unaudited
financial statements and financial statement schedules of the Company included
or incorporated by reference in the Registration Statement and the Prospectus do
not comply as to form in all material respects with the applicable accounting
requirements of the 1934 Act and the related published rules and regulations
thereunder, or (C) at a specified date not more than three days prior to the
date of the applicable Terms Agreement, there has been any change in the capital
stock of the Company or in the notes payable or mortgage notes payable of the
Company or any decrease in the total assets of the Company, as compared with the
amounts shown in the most recent consolidated balance sheet included or
incorporated by reference in the Registration Statement and the Prospectus or,
during the period from the date of the most recent consolidated statement of
operations included or incorporated by reference in the Registration Statement
and the Prospectus to a specified date not more than three days prior to the
date of the applicable Terms Agreement, there were any decreases, as compared
with the corresponding period in the preceding year, in rental income or in the
total or per share amounts of net income or income before gains (losses) on
investments and extraordinary items of the Company, except in all instances for
changes, increases or decreases which the Registration Statement and the
Prospectus
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disclose have occurred or may occur; (iv) they have compared the information in
the Prospectus under selected captions with the disclosure requirements of
Regulation S-K and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 402 and 503(d) of
Regulation S-K; and (v) in addition to the audit referred to in their opinions
and the limited procedures referred to in clause (iii) above, they have carried
out certain specified procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and the Prospectus and
which are specified by you, and have found such amounts, percentages and
financial information to be in agreement with the relevant accounting, financial
and other records of the Company and its subsidiaries identified in such letter.
(e) At Closing Time, you shall have received from Ernst & Young LLP a
letter dated as of such Closing Time to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the "specified date" referred to shall be a date not more
than three days prior to such Closing Time.
(f) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be satisfactory in form and
substance to you and counsel for the Underwriters.
(g) In the event the Underwriters exercise their option provided in a
Terms Agreement as set forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by the
Company hereunder shall be true and correct as of each Date of Delivery, and you
shall have received:
(1) A certificate, dated such Date of Delivery, of the
President and Chief Executive Officer and the Senior Vice President and
Chief Financial Officer of the Company, in their capacities as such,
confirming that the certificate
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delivered at Closing Time pursuant to Section 5(c) hereof remains true
and correct as of such Date of Delivery.
(2) The favorable opinions of Hunton & Williams, counsel for
the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise substantially to the same effect as the
opinions required by Sections 5(b)(1) and 5(b)(2) hereof.
(3) The favorable opinion of Brown & Wood, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Section 5(b)(3) hereof.
(4) A letter from Ernst & Young LLP, in form and substance
satisfactory to you and dated such Date of Delivery, substantially the
same in scope and substance as the letter furnished to you pursuant to
Section 5(e) hereof, except that the "specified date" in the letter
furnished pursuant to this Section 5(g)(4) shall be a date not more
than three days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof.
Section 6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be a part of the Registration Statement pursuant
to Rule 430A(b) or Rule 434 of the 1933 Act Regulations, if applicable,
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto)
or the omission, or alleged omission therefrom, of a material fact
necessary in order to make the statements therein, in the
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light of the circumstances under which they were made, not
misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission
referred to in subsection (1) above, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Company; and
(3) against any and all expense whatsoever, as incurred
(including, the fees and disbursements of counsel chosen by you),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceedings by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you expressly
for use in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
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(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters with respect to the offering of the Underwritten Securities shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
one or more of the Underwriters in respect of such offering, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the applicable Prospectus Supplement in respect of such offering
bears to the initial public offering price appearing thereon and the Company is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Underwritten Securities
purchased by it pursuant to the applicable Terms Agreement and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this Section 7, each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
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Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any termination of this Agreement, or
investigation made by or on behalf of any Underwriter or any controlling person,
or by or on behalf of the Company and shall survive delivery of and payment for
the Underwritten Securities to the Underwriters.
Section 9. Termination of Agreement. (a) This Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by you upon the giving of 30 days' written notice of such termination
to the other party hereto; provided that this Agreement may not be terminated
prior to the Closing Time set forth in any applicable Terms Agreement.
(b) You may also terminate the applicable Terms Agreement, by notice to
the Company, at any time at or prior to the Closing Time (i) if there has been,
since the date of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or any outbreak of hostilities or other calamity or crisis or
escalation of any existing hostilities, the effect of which is such as to make
it, in your judgment, impracticable to market the Underwritten Securities or
enforce contracts for the sale of the Underwritten Securities, or (iii) if
trading in any of the securities of the Company has been suspended by the
Commission or the New York Stock Exchange, or if trading generally on either the
New York Stock Exchange or the American Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by Federal, New York or Virginia authorities, or
(iv) if Preferred Stock is being offered and the rating assigned by any
nationally recognized statistical rating organization to any preferred stock or
debt of the Company as of the date of the applicable Terms Agreement shall have
been lowered since such date or if any such rating organization shall have
publicly announced that it has placed any preferred stock or debt of the Company
on what is commonly termed a "watch list" for possible downgrading. As used in
this Section 9(b), the term
29
<PAGE>
"Prospectus" means the Prospectus in the form first used to confirm sales of the
Underwritten Securities.
(c) In the event of any such termination, (x) the covenants set forth
in Section 3 with respect to any offering of Underwritten Securities shall
remain in effect so long as any Underwriter owns any such Underwritten
Securities purchased from the Company pursuant to the applicable Terms Agreement
and (y) the covenant set forth in Section 3(h) hereof, the provisions of Section
4 hereof, the indemnity and contribution agreements set forth in Sections 6 and
7 hereof, and the provisions of Sections 8 and 13 hereof shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), then you shall have the right, within 48
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, you shall not have completed such
arrangements within such 48-hour period, then:
(a) if the total number of Defaulted Securities does not exceed 10% of
the total number of Underwritten Securities to be purchased pursuant to such
Terms Agreement, the non-defaulting Underwriters named in such Terms Agreement
shall be obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the total number of Defaulted Securities exceeds 10% of the
total number of Underwritten Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a termination
of the applicable Terms Agreement, either you or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
30
<PAGE>
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed c/o [name and address of Representative],
attention of ______________________________; and notices to the Company shall be
directed to it at 10 South 6th Street, Suite 203, Richmond, Virginia 23219,
attention of John P. McCann, President and Chief Executive Officer.
Section 12. Parties. This Agreement and the applicable Terms Agreement
shall inure to the benefit of and be binding upon you and the Company and any
Underwriter who becomes a party to such Terms Agreement, and their respective
successors. Nothing expressed or mentioned in this Agreement or the applicable
Terms Agreement is intended or shall be construed to give any person, firm or
corporation, other than those referred to in Sections 6 and 7 and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or such Terms Agreement or any provision herein
or therein contained. This Agreement and the applicable Terms Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole and
exclusive benefit of the parties hereto and thereto and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the applicable Terms
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City time.
Section 14. Counterparts. This Agreement and the applicable Terms Agreement
may be executed in one or more counterparts, and if executed in more than one
counterpart the executed counterparts shall constitute a single instrument.
31
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between you and the Company in accordance with its terms.
Very truly yours,
UNITED DOMINION REALTY TRUST, INC.
By:
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
[Names[s] of Representative[s]]
By:
32
<PAGE>
Exhibit A
_______ Shares
UNITED DOMINION REALTY TRUST, INC.
(a Virginia corporation)
[Title of Securities]
TERMS AGREEMENT
Dated: _____________, 199__
To: United Dominion Realty Trust, Inc.
10 South 6th Street, Suite 203
Richmond, Virginia 23219
Attention: President and Chief Executive Officer
Dear Sirs:
We (the "Representative[s]") understand that United Dominion Realty
Trust, Inc., a Virginia corporation (the "Company"), proposes to issue and sell
the number of its [shares of common stock (the "Common Stock")] [shares of
preferred stock (the "Preferred Stock")] (such [Common Stock]) [Preferred Stock]
being collectively hereinafter [also] referred to as the "Underwritten
Securities"). Subject to the terms and conditions set forth or incorporated by
reference herein, the underwriters named below (the "Underwriters") offer to
purchase, severally and not jointly, the respective numbers of [Initial
Underwritten Securities (as defined in the Underwriting Agreement referred to
below)] set forth below opposite their respective names, and a proportionate
share of Option Securities (as defined in the Underwriting Agreement referred to
below) to the extent any are purchased, at the purchase price set forth below.
Number of Shares
of Initial
Underwriter Underwritten Securities
----------
Total $
==========
A-1
<PAGE>
The Underwritten Securities shall have the following terms:
[COMMON STOCK] [PREFERRED STOCK]
Title of Securities:
Number of Shares:
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public Offering Price Per Share: $ [, plus accumulated
dividends, if any, from , 19 .]
Purchase Price Per Share: $ [, plus accumulated dividends, if
any, from , 19 .]
[Conversion Provisions:]
[Redemption Provisions:]
[Sinking Fund Requirements:]
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
Maximum Number of Shares:
Fee:]
Additional co-managers, if any:
Other terms:
Closing time, date and location:
All the provisions contained in the document attached as Annex A hereto
entitled "United Dominion Realty Trust, Inc.Common Stock and Preferred
Stock-Underwriting Agreement" are hereby incorporated by reference in their
entirety herein and shall be deemed to be a part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
A-2
<PAGE>
Please accept this offer no later than o'clock P.M. (New York City
time) on by signing a copy of this Terms Agreement in the space set forth below
and returning the signed copy to us.
Very truly yours,
[NAME[S] OF REPRESENTATIVE[S]
By:_________________________
Acting on behalf of
[itself] [themselves] and
the other named
Underwriters.
Accepted:
UNITED DOMINION REALTY TRUST, INC.
By:_________________________
Name:
Title:
A-3
<PAGE>
Exhibit B
UNITED DOMINION REALTY TRUST, INC.
(a Virginia corporation)
[Title of Securities]
DELAYED DELIVERY CONTRACT
_____________, 19__
United Dominion Realty Trust, Inc.
10 South 6th Street, Suite 203
Richmond, Virginia 23219
Attention: President and Chief Executive Officer
Dear Sirs:
The undersigned hereby agrees to purchase from United Dominion Realty
Trust, Inc. (the "Company"), and the Company agrees to sell to the undersigned
on __________, 19__ (the
"Delivery Date"),
of the Company's [insert title of security] (the "Securities"), offered by the
Company's Prospectus dated __________, 19__, as supplemented by its Prospectus
Supplement dated ___________, 19__, receipt of which is hereby acknowledged, at
a purchase price of [$__________], on the Delivery Date, and on the further
terms and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
, on the Delivery Date, upon delivery
to the undersigned of the Securities to be purchased by the undersigned in
definitive form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be
B-1
<PAGE>
made by the undersigned shall not on the Delivery Date be prohibited under the
laws of the jurisdiction to which the undersigned is subject and (2) the
Company, on or before __________, 199_, shall have sold to the Underwriters of
the Securities (the "Underwriters") such principal amount of the Securities as
is to be sold to them pursuant to the Terms Agreement dated __________, 199_
between the Company and the Underwriters. The obligation of the undersigned to
take delivery of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payments for Securities
pursuant to other contracts similar to this contract. The undersigned represents
and warrants to you that its investment in the Securities is not, as of the date
hereof, prohibited under the laws of any jurisdiction to which the undersigned
is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary action for the due execution and delivery of this
contract and the payment for and purchase of the Securities has been taken by it
and no further authorization or approval of any governmental or other regulatory
authority is required for such execution, delivery, payment or purchase, and
that, upon acceptance hereof by the Company and mailing or delivery of a copy as
provided below, this contract will constitute a valid and binding agreement of
the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for a number of Securities in excess of ________ and that the
acceptance of any Delayed Delivery Contract is in the Company's sole discretion
and, without limiting the foregoing, need not be on a first-come, first-served
basis. If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance on a copy hereof and mail or deliver a
signed copy hereof to the undersigned at its address set forth below. This will
become a binding contract between the Company and the undersigned when such copy
is so mailed or delivered.
B-2
<PAGE>
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
-----------------------------
(Name of Purchaser)
By:__________________________
(Title)
-----------------------------
-----------------------------
(Address)
Accepted as of the date first above written.
UNITED DOMINION REALTY TRUST, INC.
By:__________________________
(Title)
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please print.)
Telephone No.
(including
Name Area Code)
B-3
EXHIBIT 4(i)(l)
- --------------------------------------------------------------------------------
UNITED DOMINION REALTY TRUST, INC.
TO
-----------------------------
Trustee
Indenture
Dated as of November 1, 1995
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
i
<PAGE>
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
ii
<PAGE>
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
iii
<PAGE>
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
iv
<PAGE>
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
v
<PAGE>
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
vi
<PAGE>
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
vii
<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 November 1, 1995
Trust Indenture Act Section Indenture Section
ss. 310 (a)(1).........................................................607(a)
(a)(2).........................................................607(a)
(b).......................................................607(b), 608
ss. 312 (c)...............................................................701
ss. 314 (a)...............................................................703
(a)(4)...........................................................1011
(c)(1)............................................................102
(c)(2)............................................................102
(e)...............................................................102
ss. 315 (b)...............................................................601
ss. 316 (a) (last sentence)...............................101 ("Outstanding")
(a)(1)(A)....................................................502, 512
(a)(1)(B).........................................................513
(b)...............................................................508
ss. 317 (a)(1)............................................................503
(a)(2)............................................................504
ss. 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.
viii
<PAGE>
INDENTURE, dated as of November 1, 1995, 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 _____________________________, a ________ banking ___________,
as Trustee hereunder (hereinafter called the "Trustee"), having its Corporate
Trust Office at -----------------------------------------------------------.
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
<PAGE>
(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.
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"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, at which 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, and at which
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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 _______________________________________________________.
"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.
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"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 items
(without duplication): (a) provision for Preferred Stock dividends, (b)
provision for property depreciation and amortization and (c) the effect of any
adjustments for significant non-recurring items, including any noncash charge
resulting from a change in accounting principles in determining income before
gains (losses) on investments and extraordinary items for such period, 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
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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
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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
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(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.
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"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.
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"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.
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"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;
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(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
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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,
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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
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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
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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.
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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.
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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.
_____________________________, as
Trustee
By _____________________________
Authorized Signatory
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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 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 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
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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
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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
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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.
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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.
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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
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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,
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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.
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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
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(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.
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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
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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.
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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
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(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.
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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,
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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
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(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.
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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
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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).
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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
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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
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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.
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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
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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.
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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.
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(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
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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:
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This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
-----------------------------,
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
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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.
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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.
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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.
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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
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(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:
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(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.
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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.
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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. 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
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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, surrenders, 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 Office of the Trustee
and the office or agency of _____________________________________ at
__________________________, New York, New York _____, in the Borough of
Manhattan, The City of New York, initially appoints the Trustee as a Paying
Agent in ________________,
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and ____________________________ 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.
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;
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(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
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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.
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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
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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
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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.
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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
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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
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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,
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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.
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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,
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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
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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,
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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.
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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.
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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
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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.
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(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.
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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
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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.
85
<PAGE>
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.
86
<PAGE>
(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
87
<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: ___________________________
Name:_____________________
Title:____________________
-----------------------------,
as Trustee
By: ____________________________
Name:______________________
Title:_____________________
88
<PAGE>
STATE OF VIRGINIA
CITY OF RICHMOND
The foregoing instrument was acknowledged before me in the City of
Richmond, State of Virginia, by ______________,
_____________________________________ of United Dominion Realty Trust, Inc. a
corporation, on behalf of the corporation.
My commission expires ________________________________________.
------------------------------------
Notary Public
STATE OF _________________________________
CITY/COUNTY OF __________________________
The foregoing instrument was acknowledged before me in the
City/County of _____________________________, State of _______________________,
by __________________, _______________________________ of
_______________________, N.A., a national banking association, on behalf of the
association.
My commission expires ________________________________________.
------------------------------------
Notary Public
89
<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
A-1
<PAGE>
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:
A-2
<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
A-3
<PAGE>
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: _______________________
A-4
Exhibit 4(i)(m)
UNITED DOMINION REALTY TRUST, INC.
TO
CRESTAR BANK
Trustee
Indenture
Dated as of August 1, 1994
Subordinated 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
Authenticating Agent . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . 2
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
Defaulted Interest . . . . . . . . . . . 4
Dollar or $ . . . . . . . . . . . . . . 4
DTC . . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . 4
European Communities . . . . . . . . . . 4
European Monetary System . . . . . . . . 4
Event of Default . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . 4
Foreign Currency . . . . . . . . . . . . 4
GAAP . . . . . . . . . . . . . . . . . . 5
Government Obligations . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . 5
Indexed Security . . . . . . . . . . . . 6
interest . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . 6
Make-Whole Amount . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . 6
i
Opinion of Counsel . . . . . . . . . . . 6
Original Issue Discount Security . . . . 6
Outstanding . . . . . . . . . . . . . . 6
Paying Agent . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . 8
Place of Payment . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . 8
Registered Security . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . 8
Repayment Date . . . . . . . . . . . . . 8
Repayment Price . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . 9
Securities Act . . . . . . . . . . . . . 9
Security . . . . . . . . . . . . . . . . 9
Security Register and Security
Registrar . . . . . . . . . . . . . . 9
Senior Debt . . . . . . . . . . . . . . 9
Significant Subsidiary . . . . . . . . . 10
Special Record Date . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . 10
Subsidiary . . . . . . . . . . . . . . . 10
Trust . . . . . . . . . . . . . . . . . 10
Trust Indenture Act or TIA . . . . . . . 10
Trust Request and Trust Order . . . . . 10
Trustee . . . . . . . . . . . . . . . . 10
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 . . . . . . . . . . . . . 12
SECTION 105. Notices, etc., to Trustee and Trust . . . 14
SECTION 106. Notice to Holders; Waiver . . . . . . . . 14
SECTION 107. Effect of Headings and Table of Contents . 15
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 . . . . . . . . . . . . . . 16
SECTION 113. Legal Holidays . . . . . . . . . . . . . . 16
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . 17
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . 17
SECTION 203. Securities Issuable in Global Form . . . . 18
ii
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . 18
SECTION 302. Denominations . . . . . . . . . . . . . . 22
SECTION 303. Execution, Authentication Delivery and
Dating . . . . . . . . . . . . . . . . . 23
SECTION 304. Temporary Securities . . . . . . . . . . . 25
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . 27
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . 31
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . 32
SECTION 308. Persons Deemed Owners . . . . . . . . . . 34
SECTION 309. Cancellation . . . . . . . . . . . . . . . 35
SECTION 310. Computation of Interest . . . . . . . . . 35
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . 36
SECTION 402. Application of Trust Funds . . . . . . . . 37
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . 37
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . 39
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . 40
SECTION 504. Trustee May File Proofs of Claim . . . . . 41
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons . . 42
SECTION 506. Application of Money Collected . . . . . . 42
SECTION 507. Limitation on Suits . . . . . . . . . . . 43
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium or Make-Whole
Amount, if any, Interest and Additional
Amounts . . . . . . . . . . . . . . . . 44
SECTION 509. Restoration of Rights and Remedies . . . . 44
SECTION 510. Rights and Remedies Cumulative . . . . . . 44
SECTION 511. Delay or Omission Not Waiver . . . . . . . 44
SECTION 512. Control by Holders of Securities . . . . . 45
SECTION 513. Waiver of Past Defaults . . . . . . . . . 45
SECTION 514. Waiver of Usury, Stay or Extension Laws . 45
SECTION 515. Undertaking for Costs . . . . . . . . . . 46
iii
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . . . . 46
SECTION 602. Certain Rights of Trustee . . . . . . . . 46
SECTION 603. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . 48
SECTION 604. May Hold Securities . . . . . . . . . . . 48
SECTION 605. Money Held in Trust . . . . . . . . . . . 48
SECTION 606. Compensation and Reimbursement . . . . . . 48
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests . . . . . . . . . 49
SECTION 608. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . 49
SECTION 609. Acceptance of Appointment By Successor . . 51
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . 52
SECTION 611. Appointment of Authenticating Agent . . . 53
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST
SECTION 701. Disclosure of Names and Addresses of
Holders . . . . . . . . . . . . . . . . 54
SECTION 702. Reports by Trustee . . . . . . . . . . . . 55
SECTION 703. Reports by Trust . . . . . . . . . . . . . 55
SECTION 704. Trust to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . 55
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 . . . . . 56
SECTION 802. Rights and Duties of Successor
Corporation . . . . . . . . . . . . . . 56
SECTION 803. Officers' Certificate and Opinion of
Counsel . . . . . . . . . . . . . . . . 57
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . 57
SECTION 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . 59
SECTION 903. Execution of Supplemental Indentures . . . 60
iv
SECTION 904. Effect of Supplemental Indentures . . . . 60
SECTION 905. Conformity with Trust Indenture Act . . . 60
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . 61
SECTION 907. Notice of Supplemental Indentures . . . . 61
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-
Whole Amount, if any, Interest and
Additional Amounts . . . . . . . . . . . 61
SECTION 1002. Maintenance of Office or Agency . . . . . 61
SECTION 1003. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . 63
SECTION 1004. [Omitted] . . . . . . . . . . . . . . . . 65
SECTION 1005. Existence . . . . . . . . . . . . . . . . 65
SECTION 1006. Maintenance of Properties . . . . . . . . 65
SECTION 1007. Insurance . . . . . . . . . . . . . . . . 65
SECTION 1008. Payment of Taxes and Other Claims . . . . 65
SECTION 1009. Provision of Financial Information . . . . 66
SECTION 1010. Statement as to Compliance . . . . . . . . 66
SECTION 1011. Additional Amounts . . . . . . . . . . . . 66
SECTION 1012. Waiver of Certain Covenants . . . . . . . 67
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . 68
SECTION 1102. Election to Redeem; Notice to Trustee . . 68
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . 68
SECTION 1104. Notice of Redemption . . . . . . . . . . . 69
SECTION 1105. Deposit of Redemption Price . . . . . . . 70
SECTION 1106. Securities Payable on Redemption Date . . 71
SECTION 1107. Securities Redeemed in Part . . . . . . . 71
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . 72
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . 72
SECTION 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . 73
ARTICLE THIRTEEN
v
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . . . . 73
SECTION 1302. Repayment of Securities . . . . . . . . . 73
SECTION 1303. Exercise of Option . . . . . . . . . . . . 74
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable . . . . . . . . . 74
SECTION 1305. Securities Repaid in Part . . . . . . . . 75
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Trust's Option
to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . 76
SECTION 1402 Defeasance and Discharge . . . . . . . . . 76
SECTION 1403. Covenant Defeasance . . . . . . . . . . . 77
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . 77
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions . . . . . . . . 79
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . . . 80
SECTION 1502. Call, Notice and Place of Meetings . . . . 80
SECTION 1503. Persons Entitled to Vote at Meetings . . . 81
SECTION 1504. Quorum; Action . . . . . . . . . . . . . . 81
SECTION 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings . . . . . . 82
SECTION 1506. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . 83
SECTION 1507. Evidence of Action Taken by Holders . . . 83
SECTION 1508. Proof of Execution of Instruments . . . . 84
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Agreement to Subordinate . . . . . . . . . 84
SECTION 1602. Liquidation; Dissolution; Bankruptcy . . . 84
SECTION 1603. Default on Senior Debt . . . . . . . . . . 84
SECTION 1604. Acceleration of Securities . . . . . . . . 85
SECTION 1605. When Distribution Must Be Paid Over . . . 85
SECTION 1606. Notice by Trust . . . . . . . . . . . . . 85
SECTION 1607. Subrogation . . . . . . . . . . . . . . . 85
SECTION 1608. Relative Rights . . . . . . . . . . . . . 86
vi
SECTION 1609. Subordination May Not Be Impaired by
Trust . . . . . . . . . . . . . . . . . 86
SECTION 1610. Distribution or Notice to Representative . 86
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A FORMS OF CERTIFICATION
vii
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
(Section) 310 (a)(1) . . . . . . . . . . . . . . . . . . 607(a)
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 607(a)
(b) . . . . . . . . . . . . . . . . . . . . . . 607(b), 608
(Section) 312 (c) . . . . . . . . . . . . . . . . . . . . . . 701
(Section) 314 (a) . . . . . . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . 1011
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(Section) 315 (b) . . . . . . . . . . . . . . . . . . . . . . 601
(Section) 316 (a) (last sentence) . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(Section) 317 (a)(1). . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 504
(Section) 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.
viii
INDENTURE, dated as of August 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
CRESTAR BANK, a Virginia banking corporation, as Trustee
hereunder (hereinafter called the "Trustee"), having its
Corporate Trust Office at 919 East Main Street, Richmond,
Virginia 23219.
RECITALS OF THE TRUST
The Trust deems it necessary to issue from time to time for
its lawful purposes subordinated debt securities (hereinafter
called the "Securities") evidencing its unsecured subordinated
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.
"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
2
meeting the foregoing requirements and in each case 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.
"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
3
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, which office at the date hereof is
located at 919 East Main Street, Richmond, Virginia 23219.
"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.
"Defaulted Interest"has the meaning specifiedin Section 307.
"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
4
United States of America or by any recognized confederation or
association of such governments.
"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
5
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 becomes 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.
6
"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
7
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
8
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.
"Representative" means the indenture trustee or other
trustee, agent or representative for an issue of Senior Debt.
"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
9
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.
"Senior Debt" means the principal of and interest on, or
substantially similar payments to be made by the Trust in respect
of, the following, whether outstanding at the date of execution
of this Indenture or thereafter incurred, created or assumed: (a)
indebtedness of the Trust for money borrowed or represented by
purchase-money obligations, (b) indebtedness of the Trust
evidenced by notes, debentures, or bonds, or other securities
issued under the provisions of an indenture, fiscal agency
agreement or other instrument, (c) obligations of the Trust as
lessee under leases of property either made as part of any sale
and lease-back transaction to which the Trust is a party or
otherwise, (d) indebtedness of partnerships and joint ventures
which is included in the Trust's consolidated financial
statements, (e) indebtedness, obligations and liabilities of
others in respect of which the Trust is liable contingently or
otherwise to pay or advance money or property or as guarantor,
endorser or otherwise or which the Trust has agreed to purchase
or otherwise acquire, and (f) any binding commitment of the Trust
to fund any real estate investment or to fund any investment in
any entity making such real estate investment; but excluding,
however, (1) any such indebtedness, obligation or liability
referred to in clauses (a) through (f) above as to which, in the
instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such indebtedness,
obligation or liability is not superior in right of payment to
the Securities, or ranks pari passu with the Securities, (2) any
such indebtedness, obligation or liability which is subordinated
to indebtedness of the Trust to substantially the same extent as
or to a greater extent than the Securities are subordinated and
(3) the Securities. As used in the preceding sentence the term
"purchase-money obligations" shall mean indebtedness or
obligations evidenced by a note, debenture, bond or other
instrument (whether or not secured by any lien or other security
interest but excluding indebtedness or obligations for which
recourse is limited to the property purchased) issued or assumed
as all or a part of the consideration for the acquisition of
property, whether by purchase, merger, consolidation or
otherwise, but shall not include any trade accounts payable. A
distribution may consist of cash, securities or other property.
"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.
10
"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.
"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.
"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.
11
"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.
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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
13
effective when such instrument or instruments or record or
both are delivered to the Trustee and, where it is hereby
expressly required, to the Trust. Such instrument or
instruments 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
14
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,
15
(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
Department, 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
specified with respect to any Securities pursuant to Section 301,
where this Indenture provides for notice to Holders of Bearer
Securities of any event, such notice 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
16
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.
17
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.
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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.
CRESTAR BANK, as Trustee
By
_____________________________
Authorized Signatory
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
19
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, Section 304,
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.
ARTICLE THREE
THE SECURITIES
20
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,
exchange or conversion and notices or demands to or upon the
21
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, if applicable, the portion of the principal amount of
Securities of or within the series that is convertible in
accordance with the provisions of this Indenture, 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
22
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
23
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
24
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, 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
25
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:
26
(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,
establishedinconformitywiththeprovisionsofthisIndenture;
(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.
27
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
28
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
29
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
30
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
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 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
31
aggregate principal amount, bearing 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 such 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
32
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
or 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) 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
33
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 (if
so required by thye Trust or the Security Registrar) 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
34
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
35
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.
36
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
couponwhen due in accordancewith the provisionsof 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
37
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
38
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,
39
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 fund
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.
40
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 or discharged 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) or (ii) below, any coupons appertaining
thereto not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
41
(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
42
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.
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 it becomes 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
43
(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,
44
(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):
45
(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 Amounts, with
46
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
47
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 allowed 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
48
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,
49
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.
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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.
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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).
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
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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;
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(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.
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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
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(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
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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 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
57
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
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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.
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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
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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
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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.
CRESTAR BANK, 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 August 1 of each year commencing with
the first August 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 August 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,
62
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
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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
64
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.
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
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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, including the provisions and procedures
relating to Securities convertible into Capital Stock; 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
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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
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(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.
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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 Trustee's 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.
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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 or
conversion, 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. 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 or conversion,
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 or conversion
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
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surrendered for payment (including payment of any Additional
Amounts payable on Securities of that series pursuant to Section
1011) or conversion; 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, surrenders, 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.
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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 Office of the Trustee and the
office or agency of Harris Trust Company at 7 Water Street, Fifth
Floor, New York, New York 10005, in the Borough of Manhattan,
The City of New York, initially appoints the Trustee as a Paying
Agent in Richmond, Virginia, and Harris Trust Company 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.
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
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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 or Additional Amounts 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 or Additional
Amounts; 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
73
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. [Omitted].
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.
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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.
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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 of 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 of or 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
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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
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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
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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, or for
conversion;
(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
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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
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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 except as otherwise provided
with respect to Securities convertible into Capital Stock,
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.
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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 payment 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 unmatured
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
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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.
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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
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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
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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.
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
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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
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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
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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
89
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
90
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.
91
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
92
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
93
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
94
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.
95
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 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.
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Agreement to Subordinate.
The Trust agrees, and each Holder by accepting a Security
agrees, that the indebtedness evidenced by the Securities is
subordinated in right of payment, to the extent and in the manner
provided in this Article, to the prior payment in full of all
Senior Debt and that the subordination is for the benefit of the
holders of Senior Debt.
SECTION 1602. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Trust in a
liquidation or dissolution of the Trust or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding
relating to the Trust or its property:
(1) holders of Senior Debt shall be entitled to
receive payment in full in cash of the principal of and
interest (including interest accruing after the commencement
of any such proceeding) to the date of payment on the Senior
Debt before Holders shall be entitled to receive any payment
of principal of or interest on Securities;
(2) until the Senior Debt is paid in full in cash, any
distribution to which Holders would be entitled but for this
Article shall be made to holders of Senior Debt as their
interests may appear, except that Holders may receive
96
securities that are subordinated to Senior Debt to at least
the same extent as the Securities; and
(3) the Trustee is entitled to rely upon an order or
decree of a court of competent jurisdiction or a certificate
of a bankruptcy trustee or other similar official for the
purpose of ascertaining the persons entitled to participate
in such distribution, the holders of Senior Debt and other
Trust debt, the amount thereof or payable thereon and all
other pertinent facts relating to the Trustee's obligations
under this Article Sixteen.
SECTION 1603. Default on Senior Debt.
The Trust may not pay principal of or interest on the
Securities and may not acquire any Securities for cash or
property other than capital stock of the Trust if:
(1) a default on Senior Debt occurs and is continuing
that permits holders of such Senior Debt to accelerate its
maturity, and
(2) the default is the subject of judicial proceedings
or the Trust receives a notice of the default from a person
who may give it pursuant to Section 1611. If the Trust
receives any such notice, a similar notice received within
nine months thereafter relating to the same default on the
same issue of Senior Debt shall not be effective for
purposes of this Section.
The Trust may resume payments on the Securities and may
acquire them when:
(a) the default is cured or waived, or
(b) 120 days pass after the notice is given if the
default is not the subject of judicial proceedings.
if this Article otherwise permits the payment or acquisition at
that time.
SECTION 1604. Acceleration of Securities.
If payment of the Securities is accelerated because of an
Event of Default, the Trust shall promptly notify holders of
Senior Debt of the acceleration. The Trust may pay the
Securities when 120 days pass after the acceleration occurs if
this Article permits the payment at that time.
SECTION 1605. When Distribution Must Be Paid Over.
If a distribution is made to Holders that because of this
Article should not have been made to them, the Holders who
receive the distribution shall hold it in trust for holders of
97
Senior Debt and pay it over to them as their interests may
appear.
SECTION 1606. Notice by Trust.
The Trust shall promptly notify the Trustee and any Paying
Agent of any facts known to the Trust that would cause a payment
of principal of or interest on Securities to violate this
Article.
SECTION 1607. Subrogation.
After all Senior Debt is paid in full and until the
Securities are paid in full, Holders shall be subrogated to the
rights of holders of Senior Debt to receive distributions
applicable to Senior Debt to the extent that distributions
otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Article to
holders of Senior Debt which otherwise would have been made to
Holders is not, as between the Trust and Holders, a payment by
the Trust on Senior Debt.
SECTION 1608. Relative Rights.
This Article defines the relative rights of Holders and
holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Trust and Holders, the
obligation of the Trust, which is absolute and
unconditional, to pay principal of and interest on the
Securities in accordance with their terms;
(2) affect the relative rights of Holders and
creditors of the Trust other than holders of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising
its available remedies upon an Event of Default, subject to
the rights of holders of Senior Debt to receive
distributions otherwise payable to Holders.
If the Trust fails because of this Article to pay principal
of or interest on a Security on the due date, the failure is
still a default.
SECTION 1609. Subordination May Not Be Impaired by Trust.
No right of any holder of Senior Debt to enforce the
subordination of the indebtedness evidenced by the Securities
shall be impaired by any act or failure to act by the Trust or by
its failure to comply with this Indenture.
SECTION 1610. Distribution or Notice to Representative.
98
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the
notice given to their Representative.
SECTION 1611. Rights of Trustee and Paying Agent.
The Trustee or any Paying Agent may continue to make
payments on the Securities until it receives written notice of
facts that would cause a payment of principal of or interest on
the Securities to violate this Article. Only the Trust, a
Representative or a holder of an issue of Senior Debt that has no
Representative may give the written notice.
The Trustee has no fiduciary duty to the holders of Senior
Debt other than as created under this Indenture. The Trustee in
its individual or any other capacity may hold Senior Debt with
the same rights it would have if it were not Trustee.
The Trust's obligation to pay, and the Trust's payment of,
the Trustee's fees pursuant to Section 606 are excluded from the
operation of this Article Sixteen.
* * * * *
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.
99
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: ___________________________
Name: John P. McCann
Title: President and Chief
Executive Officer
CRESTAR BANK, as Trustee
By: ____________________________
Name:______________________
Title: ____________________
100
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.
M y c o m m i s s i o n e x p i r e s
________________________________________.
____________________________________
Notary Public
STATE OF _________________________________
CITY/COUNTY OF __________________________
The foregoing instrument was acknowledged before me in the
City/County of _____________________________, State of
_______________________, by __________________,
_______________________________ of Crestar Bank, a Virginia
banking corporation, on behalf of the corporation.
M y c o m m i s s i o n e x p i r e s
________________________________________.
____________________________________
Notary Public
101
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.
A-1
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:
A-2
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.
A-3
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:
_______________________
A-4
EXHIBIT 4(i)(n)
REGISTERED PRINCIPAL AMOUNT
No.: $
CUSIP No.: _________
UNITED DOMINION REALTY TRUST, INC.
[Designation of Senior Security]
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
_____________, and to pay interest on the outstanding principal amount thereon
from _____________, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually in arrears on _______
and _________ in each year, commencing _______________, at the rate of __% 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 Senior Security (or one or more Predecessor Senior
Securities) is registered at the close of business on the Regular Record Date
for such interest which shall be the ________ or ________ (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 Senior Security (or one or more
Predecessor Senior Securities) 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 Senior Securities 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
Senior Securities 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 Senior Security will be
made at the office or agency of the Trust maintained for that purpose in the
City of _____________, State of ________, 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 Senior Securities
pursuant to Section 305 of the Indenture (the "Security Register") or (ii)
transfer to an account of the Person entitled thereto located inside the United
States.
This Senior Security is one of a duly authorized issue of securities of
the Trust (herein called the "Senior Securities"), 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 _____________________________ (herein
called the "Trustee," which term includes any successor trustee under the
Indenture with respect to the Senior Securities), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
<PAGE>
respective rights, limitations of rights, duties and immunities thereunder of
the Trust, the Trustee and the Holders of the Senior Securities and of the terms
upon which the Senior Securities are, and are to be, authenticated and
delivered. This Senior Security is one of the series designated as the
"[designation of Senior Securities]," limited in aggregate principal amount to
$----------.
The Senior Securities 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 Senior Securities being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make-Whole Amount, if any,
with respect to such Senior Securities.
The following definitions apply with respect to any redemption of the
Senior Securities of this series at the option of the Trust:
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Senior Security, 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 Senior Securities 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
-2-
<PAGE>
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 Senior Security 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 Senior Security.
If an Event of Default with respect to the Senior Securities shall
occur and be continuing, the principal of, and the Make-Whole Amount, if any,
on, the Senior Securities 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 Senior Security 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 Senior Securities, the Holders of not less than 25% in
principal amount of the Senior Securities 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 Senior Securities 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 Senior
Security 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 Senior Securities 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 Senior Securities.
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Senior Securities at the time
Outstanding, on behalf of the Holders of all Senior Securities, 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 Senior Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Senior Security and of any
Senior Security 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 Senior Security.
No reference herein to the Indenture and no provision of this Senior
Security 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 Senior Security at the times, place and rate,
and in the coin or currency, herein prescribed.
-3-
<PAGE>
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Senior Security is registrable in the Security
Register, upon surrender of this Senior Security 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 Senior Security 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 Senior
Securities (the "Security Registrar") duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Senior
Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Senior Securities 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, Senior Securities of this series are exchangeable for a like
aggregate principal amount of Senior Securities 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 Senior 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 this Senior Security is registered as the owner
hereof for all purposes, whether or not this Senior Security 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 Senior Security, 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 Senior Security by the Holder thereof and as part of the
consideration for the issue of the Senior Securities.
All terms used in this Senior Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SENIOR SECURITIES, INCLUDING THIS SENIOR SECURITY,
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 Senior Securities as a convenience to the Holders of the Senior
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Senior Securities, and reliance may be placed
only on the other identification numbers printed hereon.
-4-
<PAGE>
Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee by manual signature, this Senior Security 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 , .
UNITED DOMINION REALTY TRUST, INC.
By: _______________________
Name:________________
Title:_______________
Attest:
By:_______________________
Name:________________
Title:_______________
[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Senior Securities of the series designated
"[designation of Senior Securities]" pursuant to the within-mentioned Indenture.
________________________,
as Trustee
By:________________________
Authorized Signatory
-5-
<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 Senior Security of United Dominion Realty Trust and __________ hereby
does irrevocably constitute and appoint
................................................................................
Attorney to transfer said Senior Security 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 Senior Security in every particular,
without alteration or enlargement or any change whatever.
- --------------------------------------------------------------------------------
EXHIBIT 5
Hunton & Williams
RIVERFRONT PLAZA, EAST TOWER
951 EAST BYRD STREET
RICHMOND, VIRGINIA 23219-4074
FILE NO.: 27789.227
DIRECT DIAL: (804) 788-8267
November 15, 1995
Board of Directors
United Dominion Realty Trust, Inc.
10 South Sixth Street
Richmond, Virginia 23219
Registration Statement on Form S-3
$400,000,000 of Offered Securities
Gentlemen:
We are acting as counsel for United Dominion Realty Trust, Inc. (the
"Company") in connection with the registration under the Securities Act of 1933
of debt securities ("Debt Securities"), Preferred Stock, no par value
("Preferred Stock"), and Common Stock, $1 par value ("Common Stock"), of the
Company having an aggregate maximum public offering price of $400,000,000 (the
"Offered Securities"). The Offered Securities are described in the Registration
Statement on Form S-3 of the Company (the "Registration Statement") to be filed
with the Securities and Exchange Commission (the "Commission") on November 15,
1995. In connection with the filing of the Registration Statement you have
requested our opinion concerning certain corporate matters.
We are of the opinion that:
1. The Company is a corporation duly organized and validly existing
under the laws of the Commonwealth of Virginia.
2. When the Offered Securities have been sold as described in the
Registration Statement, the Offered Securities (to the extent consisting of
Preferred Stock and/or Common Stock) will be legally issued, fully paid and
nonassessable and (to the extent consisting of Debt Securities) will be legally
issued, fully paid and nonassessable and will be binding obligations of the
Company.
We consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and to the reference to us in the
Prospectus included therein.
Very truly yours,
HUNTON & WILLIAMS
EXHIBIT 12
UNITED DOMINION REALTY TRUST, INC.
COMPUTATION OF RATIO OF EARNINGS AND FUNDS FROM OPERATIONS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(DOLLAR IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS NINE MONTHS
YEAR ENDED YEAR ENDED YEAR ENDED YEAR ENDED YEAR ENDED ENDED ENDED
DECEMBER 31, DECEMBER 31, DECEMBER 31, DECEMBER 31, DECEMBER 31, SEPTEMBER 30, SEPTEMBER 30,
1990 1991 1992 1993 1994 1994 1995
<S> <C> <C> <C> <C> <C> <C> <C>
Income before extraordinary item $ 4,973 $ 3,604 $ 6,577 $11,197 $19,226 $13,458 $25,224
Add:
Portion of rents representative
of the interest factor 47 103 126 143 177 121 143
Interest on indebtedness 9,488 11,918 11,777 17,237 28,521 18,202 30,563
Adoption of SFAS No. 112
"Employers' Accounting for
Postemployment Benefits" - - - - 450 450 -
Earnings $14,508 $15,625 $18,480 $28,577 $48,374 $32,231 $55,930
Add/(Deduct):
Depreciation on real estate 10,385 12,732 15,557 18,916 28,729 19,807 28,545
(Gains)/losses on sales of real
estate owned (417) (26) - 89 (108) 20 (4,844)
Other - - 1,564 - - - 500
Funds from operations,
as adjusted $24,476 $28,331 $35,601 $48,182 $76,995 $52,058 $80,131
Fixed charges and preferred stock
dividend:
Interest on indebtedness $ 9,488 $11,918 $11,777 $17,237 $28,521 $18,202 $30,563
Capitalized interest 597 291 73 0 0 0 0
Portion of rents representative
of the interest factor 47 103 126 143 177 121 143
Fixed charges 10,132 12,312 11,976 17,380 28,698 18,323 30,706
Add:
Preferred stock dividend - - - - - - 4,209
Combined fixed charges and preferred
stock dividend $10,132 $12,312 $11,976 $17,380 $28,698 $18,323 $34,915
Ratio of earnings to fixed charges 1.43x 1.27x 1.54x 1.64x 1.69x 1.76x 1.82x
Ratio of earnings to combined fixed
charges and preferred stock
dividend 1.43 1.27 1.54 1.64 1.69 1.76 1.60
Ratio of funds from operations
to fixed charges 2.42 2.30 2.97 2.77 2.68 2.84 2.61
Ratio of funds from operations
to combined fixed charges and
preferred stock dividend 2.42 2.30 2.97 2.77 2.68 2.84 2.30
</TABLE>
EXHIBIT 23(a)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of United Dominion
Realty Trust, Inc. for the registration of debt securities, preferred stock,
and common stock with a proposed maximum aggregate offering price of
$400,000,000 and to the incorporation by reference therein of our report
dated January 25, 1995, except for Note 11, as to which the date is
March 6, 1995, with respect to the consolidated financial statements and
schedules of United Dominion Realty Trust, Inc. included in or incorporated
by reference in its annual report (Form 10-K) for the year ended
December 31, 1994, filed with the Securities and Exchange Commission.
Richmond, Virginia
November 14, 1995
EXHIBIT 23(b)
[L.P. MARTIN & COMPANY LETTERHEAD]
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
United Dominion Realty Trust, Inc.
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of United Dominion
Realty Trust, Inc. for the registration of debt securities, preferred stock,
and common stock with a proposed maximum aggregate offering price of
$400,000,000 and to the incorporation by reference therein of our reports
dated May 24, 1995, with respect to the statements of rental operations of
Brittingham Square Apartments, The Manor at England Run Apartments, The
Greens of Constant Friendship Apartments, The Greens at Cedar Chase
Apartments, The Greens at Cross Court Apartments, The Greens at Falls Run
Apartments, The Greens at Hilton Run Apartments, The Greens at Hollymead
Apartments, and The Greens at Schumaker Pond Apartments for the year ended
December 31, 1994, included in its Current Report on Form 8-K dated
June 30, 1995.
L.P. Martin & Company, P.C.
Certified Public Accountants
November 14, 1995
