As filed with the Securities and Exchange Commission
on February 9, 1996
Registration No. 33-64877
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
AMENDMENT NO. 1
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
______________________
HEALTH CARE REIT, INC.
(Exact name of Registrant as specified in governing instrument)
DELAWARE 34-1096634
(State of incorporation) (IRS Employer Identification No.)
One SeaGate, Suite 1950
Toledo, Ohio 43604
Telephone: 419-247-2800
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
BRUCE G. THOMPSON
Chairman of the Board of Directors
Health Care REIT, Inc.
One SeaGate, Suite 1950
Toledo, Ohio 43604
Telephone: 419-247-2800
Copy to :
Mary Ellen Pisanelli, Esquire
Shumaker, Loop & Kendrick
North Courthouse Square
1000 Jackson
Toledo, Ohio 43624
(419) 241-9000
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration
Statement as determined by the Registrant.
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. XX
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 number of the earlier effective registration statement
for the same offering.
If this Form is a post-effective amendment filed pursuant
to Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration number of the earlier
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.
______________________
CALCULATION OF REGISTRATION FEE
Proposed Maximum
Title of Shares Proposed Maximum Aggregate Amount of
to be Amount to be Offering Price Offering Price Registration
Registered (1) Registered Per Share (2) (3) (4) Fee (3)
- ------------- ------------ ---------------- ---------------- ----------
Debt Securities
(5)
Preferred Stock,
$1.00 par value,
Depositary Shares
Common Stock,
$1.00 par value
(6)
Warrants
Total $200,000,000 $200,000,000 $68,966
(1) Any securities registered hereunder may be sold separately or
as units with other securities registered hereunder. Subject to
Footnote (4), there are being registered hereunder an indeterminate
principal amount of Debt Securities, Preferred Stock, Common Stock
and Warrants as may be sold from time to time by the Registrant.
This Registration Statement also covers contracts that may be
issued by the Registrant under which the counterparty may be
required to purchase Debt Securities, Preferred Stock, Common Stock
or Warrants. Such contracts would be issued with Debt Securities,
Preferred Stock, Common Stock or Warrants. There are also being
registered hereunder an indeterminate principal amount of Debt
Securities, Preferred Stock, Common Stock and Warrants as may be
issuable upon conversion or exchange of Debt Securities, Preferred
Stock or Warrants pursuant to antidilution provisions thereof.
(2) The proposed maximum offering price per unit will be
determined form time to time by the Registrant in connection with
the issuance by the Registrant of the securities registered
hereunder.
(3) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457(o). In no event will the
aggregate initial offering price of the Debt Securities, Preferred
Stock, Common Stock and Warrants issued under this Registration
Statement exceed $200,000,000.
(4) No separate consideration will be received for (i) Debt
Securities, shares of Common Stock or Preferred Stock that are
issued upon conversion of Debt Securities or Preferred Stock or
(ii) Debt Securities, shares of Common Stock or Preferred Stock
that are issued upon exercise of Warrants registered hereby.
(5) If any such Debt Securities are issued at an original issue
discount, then the offering price shall be in such greater
principal amount as shall result in an aggregate initial offering
price of up to $200,000,000.
(6) This Registration Statement also covers Preferred Stock
Purchase Rights under the Registrant's Preferred Stock Purchase
Rights Plan, which are attached to and tradeable only with the
shares of Common Stock registered hereby. No registration fees are
required for such shares and such rights because they will be
issued for no additional consideration.
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 Securities and Commission,
acting pursuant to said Section 8(a), may determine.
PROSPECTUS
HEALTH CARE REIT, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
Health Care REIT, Inc. (the "Company") intends to issue
from time to time, in one or more series, its (i) unsecured and
senior or subordinated debt securities ("Debt Securities"); (ii)
shares or fractional shares of preferred stock, $1.00 par value
("Preferred Stock"); (iii) shares of common stock, $1.00 par value
("Common Stock"); and (iv) warrants ("Warrants") to purchase Debt
Securities, Preferred Stock or Common Stock ("Warrants"). The Debt
Securities, the Preferred Stock, the Common Stock and the Warrants
offered hereby (collectively, the "Offered Securities") may be
offered, separately or as units with other offered securities, in
separate series and 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"), at an aggregate initial
public offering price not to exceed $200,000,000, on terms to be
determined at the time of sale.
The specific terms of the Offered Securities 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, denomination, maturity,
priority, interest rate, time of interest, terms of redemption at
the option of the Company 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, the
number of shares, the dividend, liquidation, redemption,
conversion, voting and other rights and the initial public offering
price; (iii) in the case of Common Stock, the specific number of
shares and the initial public offering price; (iv) in the case of
Warrants, the number and terms thereof, the designation and the
number of Offered Securities issuable upon their exercise, the
exercise price, any listing of the Warrants or the underlying
Offered Securities on a securities exchange and any other terms in
connection with the offering, sale and exercise; and, (v) 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 Company as a qualified
real estate investment trust ("REIT") under the Internal Revenue
Code of 1986, as amended (the "Code"). The applicable Prospectus
Supplement will 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.
The Offered Securities may be offered directly, through
agents designated from time to time by the Company, or to or
through underwriters or dealers. If any designated agents or
underwriters are involved in the sale of the Offered Securities,
they will be identified and their compensation will be described in
the applicable Prospectus Supplement. See "Plan of Distribution."
Also, the net proceeds to the Company from such sale will be set
forth in the Prospectus Supplement. No Offered Securities may be
sold without the delivery of the applicable Prospectus Supplement
describing such Offered Securities and the method and terms of the
offering thereof.
The shares of Common Stock of the Company are listed on
the New York Stock Exchange under the symbol "HCN." On February 7,
1996, the reported last sale price of the shares of Common Stock on
the New York Stock Exchange was $21.25 per share.
____________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSIONER 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 February 9, 1996
<PAGE>
AVAILABLE INFORMATION
The Company 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 Company 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, Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661 and Suite 1300, Seven World Trade Centre, 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 all exhibits, the
"Registration Statement"), filed by the Company 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 Company with the
Commission are incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended December 31,
1994 and Amendment Nos. 1, 2 and 3 filed with the Commission on
April 26, 1995, June 28, 1995 and September 13, 1995, respectively.
2. Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1995 and Amendment No. 1 filed with the Commission
on September 13, 1995.
3. Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1995 and Amendment No. 1 filed with the Commission
on September 29, 1995.
4. Quarterly Report on Form 10-Q for the quarterly period
ended September 30, 1995.
5. Current Reports on Form 8-K filed with the Commission on
February 13, 1995; March 24, 1995; May 12, 1995; and December 8,
1995.
6. All documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the
termination of the offering of the Securities shall be deemed to be
incorporated herein by reference and to be a part of this
Prospectus from the date of filing of each such document.
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, and any
accompanying Prospectus Supplement relating to a specific offering
of Offered Securities or in any other subsequently filed document,
as the case may be, 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 Company
will provide on request and without charge to each person to whom
this Prospectus is delivered, upon the oral or written request of
such person, a copy (without exhibits) of any or all documents
incorporated by reference to this Prospectus. Requests for such
copies should be directed to Erin C. Ibele, Vice President and
Corporate Secretary, Health Care REIT, Inc., One SeaGate, Suite
1950, Toledo, Ohio 43604, telephone number (419) 247-2800.
THE COMPANY
Health Care REIT, Inc. (the "Company"), founded in 1970,
is a self-administered real estate investment trust ("REIT") that
invests in health care facilities throughout the United States. It
is the oldest health care REIT in the industry. The Company's
primary focus is on financing long-term care facilities such as
nursing homes, assisted living facilities and retirement centers,
which together comprise approximately 75% of the investment
portfolio. The remainder of the portfolio is diversified and is
comprised of a portfolio of specialty care facilities providing
acute, sub-acute and primary care services.
The Company's objective is to enable stockholders to
participate in health care investments that produce income and
preserve principal. Since its inception, the Company has paid 98
consecutive quarterly dividends.
Effective December 16, 1992, the shares of the common
stock of the Company were listed on the New York Stock Exchange
under the symbol "HCN." The Company was previously listed on the
American Stock Exchange. The Company's executive offices are
located at One SeaGate, Suite 1950, Toledo, Ohio, 43604, and the
telephone number is (419) 247-2800.
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 to finance, either directly or indirectly,
the Company's investments in health care facilities and will allow
the Company to pursue additional health care property investments
and complete unfunded commitments.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to
fixed charges of the Company for the periods indicated. For
purposes of calculating such ratio, "earnings" includes net income
plus fixed charges. "Fixed charges" consists of interest on all
indebtedness. The Company did not have any Preferred Stock
outstanding for any period presented. Accordingly, the ratio of
earnings to combined fixed charges and preferred stock dividends is
identical to the ratio of earnings to fixed charges for the periods
presented.
Nine Months Ended Year ended December 31,
Sept. 30, --------------------------------
1995 1994 1993 1992 1991 1990
----------------- ---- ---- ---- ---- ----
Consolidated ratio
of earnings to
fixed charges
(unaudited) ........ 2.32 3.58 2.85 3.02 2.19 1.98
DESCRIPTION OF DEBT SECURITIES
General
The Debt Securities may be issued in one or more series
under an Indenture to be executed by the Company and a trustee (the
"Trustee"), a form of which is included as an exhibit to the
Registration Statement of which this Prospectus is a part (the
"Indenture"). The terms of the Debt Securities may include those
stated in the Indenture and those made a part of the Indenture
(before any supplements) by reference to the Trust Indenture Act of
1939, as amended (the "TIA").
The following is a summary of certain provisions of the
Indenture and does not purport to be complete and is qualified in
its entirety by reference to the detailed provisions of the
Indenture, including the definitions of certain terms therein to
which reference is hereby made for a complete statement of such
provisions. Wherever particular provisions or sections of the
Indenture or terms defined therein are referred to herein, such
provisions or definitions are incorporated herein by reference.
Terms
The Debt Securities will be direct, unsecured obligations
of the Company.
The 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 Company 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.
The 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 the 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. 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 and, except as other
wise 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.
The Prospectus Supplement will describe certain terms of
any Debt Securities offered hereby, including:
(1) the title of such Debt 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 maturity thereof, or (if
applicable) the portion of the principal amount of such Debt
Securities that is convertible into Capital Stock of the Company or
the method by which any such portion will be determined;
(4) if convertible, in connection with the preservation of
the Company's status as a REIT, any applicable limitations on the
ownership or transferability of the Capital Stock of the Company
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 the Indenture, if any),
interest, if any, 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 Company 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 Company, if the Company is to have the option;
(9) the obligation, if any, of the Company 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 $1,000 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 (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 Company
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 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 Company 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 provisions
of the applicable Indenture;
(18) whether and under what circumstances the Company 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 Company 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.
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"). Special United States federal income tax, accounting
and other considerations applicable to Original Issue Discount
Securities will be described in the applicable Prospectus
Supplement.
Conversion Rights
(1) The terms, if any, on which Debt Securities of any series
may be converted into shares of Common Stock or Debt Securities of
another series will be set forth in the Prospectus Supplement
relating thereto. To protect the Company's status as a REIT, the
holders of Debt Securities of any series ("Holders") may not
convert any Debt Security, and such Debt Security shall not be
convertible by any Holder, if as a result of such conversion any
person would then be deemed to beneficially own, directly or
indirectly, 9.8% or more of the then outstanding shares of Common
Stock.
(2) The conversion price will be subject to adjustment under
certain conditions, including (a) the payment of dividends (and
other distributions) in shares of Common Stock; (b) subdivisions,
combinations and reclassifications of shares of Common Stock; (c)
the issuance to all or substantially all holders of shares of
Common Stock of rights or warrants entitling them to subscribe for
or purchase shares of Common Stock at a price per share (or having
a conversion price per share of Common Stock) less than the then
current market price; and (iv) distributions to all or
substantially all holders of shares of Common Stock or shares of
any other class, of evidences of indebtedness or assets (including
securities, but excluding those rights, warrants, dividends and
distributions referred to above and dividends and distributions not
prohibited under the terms of the Indenture) of the Company,
subject to the limitation that all adjustments by reason of any of
the foregoing would not be made until they result in a cumulative
change in the conversion price of at least 1%. In the event the
Company shall effect any capital reorganization or reclassification
of its shares of Common Stock or shall consolidate or merge with or
into any trust or corporation (other than a consolidation or merger
in which the Company is the surviving entity) or shall sell or
transfer substantially all its assets to any other trust or
corporation, the Holders shall, if entitled to convert such Debt
Securities at any time after such transaction, receive upon
conversion thereof, in lieu of each share of Common Stock into
which the Debt Securities of such series would have been
convertible prior to such transaction, the same kind and amount of
stock and other securities, cash or property as shall have been
issuable or distributable in connection with such transaction with
respect to each share of Common Stock.
(3) A conversion price adjustment made according to the
provisions of the Debt Securities of any series (or the absence of
provision for such an adjustment) might result in a constructive
distribution to the Holders of Debt Securities of such series or
holders of shares of Common Stock that would be subject to taxation
as a dividend. The Company may, at its option, make such
reductions in the conversion price, in addition to those set forth
above, as the Board of Directors of the Company deems advisable to
avoid or diminish any income tax to holders of shares of Common
Stock resulting from any dividend or distribution of shares of
Common Stock (or rights to acquire shares of Common Stock) or from
any event treated as such for income tax purposes or for any other
reason. The Board of Directors will also have the power to resolve
any ambiguity or correct any error in the provisions relating to
the adjustment of the conversion price of the Debt Securities of
such series and its actions in so doing shall be final and
conclusive.
(4) Fractional shares of Common Stock will not be issued upon
conversion, but, in lieu thereof, the Company will pay a cash
adjustment based upon market price.
(5) The Holders of Debt Securities of any series at the close
of business on an interest payment record date shall be entitled to
receive the interest payable on such Debt Securities on the
corresponding interest payment date notwithstanding the conversion
thereof. However, Debt Securities surrendered for conversion
during the period from the close of business on any record date for
the payment of interest to the opening of business on the
corresponding interest payment date must be accompanied by payment
of an amount equal to the interest payable on such interest payment
date. Holders of Debt Securities of any series who convert Debt
Securities of such series on an interest payment date will receive
the interest payable by the Company on such date and need not
include payment in the amount of such interest upon surrender of
such Debt Securities for conversion.
CERTAIN COVENANTS
Merger, Consolidation or Sale.
------------------------------
The Company 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 Company shall
be the continuing entity, or the successor entity (if other than
the Company) 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 Company or any Subsidiary as a result thereof as
having been incurred by the Company 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.
Optional Redemption.
--------------------
The Debt Securities of any series that are convertible
into shares of Common Stock will be subject to redemption, in whole
or from time to time in part, at any time for certain reasons
intended to protect the Company's status as a REIT at the option of
the Company on at least 30 days' prior notice by mail at a
redemption price equal to 100% of the principal amount, plus
interest accrued to the date of redemption. See DESCRIPTION OF
CAPITAL STOCK - "Redemption and Restrictions on Transfer."
Dividends, Distributions and Acquisitions.
------------------------------------------
The Indenture provides that the Company will not (a)
declare or pay any dividend or make any distribution on its shares
of Common Stock or to holders of its shares of Common Stock (other
than dividends or distributions payable in its shares of Common
Stock or other than as the Company determines is necessary to
maintain its status as a REIT) or (b) purchase, redeem or otherwise
acquire or retire for value any of its shares of Common Stock or
permit any subsidiary to do so, if at the time of such action an
Event of Default (as defined in the Indenture) has occurred and is
continuing or would exist immediately after giving effect to such
action.
Additional Covenants.
---------------------
Any additional covenants of the Company with respect to
a series of the Debt Securities will be set forth in the Prospectus
Supplement relative thereto.
Modification of the Indentures
Modifications and amendments of the 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, 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.
The Holders of not less than a majority in principal
amount of Outstanding Debt Securities issued under the Indenture
have the right to waive compliance by the Company with certain
covenants in the Indenture.
Events of Default, Notice and Waiver
The 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
Company 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 Company (or by
any Subsidiary, the repayment of which the Company has guaranteed
or for which the Company 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 Company 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
Company 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. The term
"Significant Subsidiary" means each significant subsidiary as
defined in Regulation S-X promulgated under the Securities Act of
the Company.
If an event of Default under the Indenture with respect
to Debt Securities of any series at the time outstanding occurs and
is continuing, then in every such case the Trustees or 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 Company 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 Company 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. The 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 may be) may
waive any past default with respect to such series and its
consequences, except a default (i) 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
(ii) 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.
A 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 a 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.
The 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. 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.
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 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.
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 Company 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 Company if such Debt Securities are
offered directly by the Company. 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 Company,
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 Company 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 Company 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 Company within 90
days, the Company will issue individual Debt Securities in exchange
for the Global Security representing such Debt Securities. In
addition, the Company 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.
Governing Law
The Indenture and the Debt Securities will be governed by
and construed in accordance with the laws of the State of Ohio.
DESCRIPTION OF WARRANTS
The Company may issue, together with any other series of
Securities offered or separately, Warrants entitling the holder to
purchase from or sell to the Company, or to receive from the
Company the cash value of the right to purchase or sell, Debt
Securities, shares of Preferred Stock or Common Stock. The
Warrants are to be issued under a Warrant Agreement (each a
"Warrant Agreement") to be entered into between the Company and a
bank or trust company, as warrant agent (the "Warrant Agent"), all
as set forth in the applicable Prospectus Supplement relating to
the particular issue of Warrants. Copies of the form of Warrant
Agreement, including the form of Warrant Certificate representing
the Warrants (the "Warrant Certificates"), are filed as exhibits to
the Registration Statement of which this Prospectus forms a part.
In the case of each series of Warrants, the applicable
Prospectus Supplement will describe the terms of the Warrants being
offered thereby, including the following, if applicable: (a) the
offering price; (b) the currencies in which such Warrants are being
offered; (c) the number of Warrants offered; (d) the securities
underlying the Warrants; (e) the exercise price, the procedures for
exercise of the Warrants and the circumstances, if any, that will
cause the Warrants to be deemed to be automatically exercised; (f)
the date on which the right to exercise the Warrants shall commence
and the date on which such right shall expire; (g) U.S. federal
income tax consequences; and (h) other terms of the Warrants.
Warrants may be exercised at the appropriate office of
the Warrant Agent or any other office indicated in the applicable
Prospectus Supplement. Prior to the exercise of Warrants entitling
the holder to purchase any securities, holders of such Warrants
will not have any of the rights of holders of the securities
purchasable upon such exercise and will not be entitled to payments
made to holders of such securities.
The Warrant Agreements may be amended or supplemented
without the consent of the holders of the Warrants issued
thereunder to effect changes that are not inconsistent with the
provisions of the Warrants and that do not adversely affect the
interests of the holders of the Warrants.
DESCRIPTION OF COMMON STOCK
AND PREFERRED STOCK
General
The Company is authorized to issue 40,000,000 shares of
Common Stock, $1.00 par value per share. The Company had
outstanding 11,723,528 shares of common stock, $1.00 par value per
share (the "Common Stock") on September 30, 1995. The shares
constitute the only class of outstanding voting securities of the
Company.
The Company is authorized to issue 10,000,000 shares of
Preferred Stock, $1.00 par value per share. No shares of Preferred
Stock (the "Preferred Stock") were outstanding on September 30,
1995. The Company has authorized the issuance of 13,000 shares of
Junior Participating Stock, Series A ("Series A Preferred Stock")
which is discussed below.
The following statements with respect to the capital
stock of the Company are subject to detailed provisions of the
Company's Certificate of Incorporation, as amended (the
"Certificate"), and the Company's By-Laws (the "By-Laws") as
currently in effect. These statements do not purport to be
complete, or to give full effect of 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 Certificate and
By-Laws which are filed as exhibits to the registration statement.
Series A Preferred Stock
On July 19, 1994, the Board of Directors of the Company
authorized the issuance of one preferred share purchase right (a
"Right") for each outstanding share of Common Stock. Under certain
conditions, each Right may be exercised to purchase one one-
thousandth of a share of Junior Participation Preferred Stock,
Series A, par value $1.00 per share ("Series A Preferred Stock"),
of the Company at a price of $48. The number of Rights outstanding
and Series A Preferred Stock issuable upon exercise, as well as the
Series A Preferred Stock purchase price, are subject to customary
antidilution adjustments.
The Rights are evidenced by the certificates for shares
of Common Stock, and in general are not transferable apart from the
Common Stock or exercisable until after a party has acquired
beneficial ownership of, or made a tender offer for 15% or more of
the outstanding Common Stock of the Company (an "Acquiring
Person"), or the occurrence of other events as specified in a
Rights Agreement between the Company and Chemical Mellon Bank, as
Rights Agent. Under certain conditions as specified in the Rights
Agreement, including but not limited to, the acquisition by a party
of 15% or more of the outstanding Common Stock of the Company, or
the acquisition of the Company in a merger or other business
combination, each holder of a Right (other than an Acquiring
Person, whose Rights will be void) will receive upon exercise
thereof and payment of the exercise price that number of shares of
Common Stock of the Company, or of the other party, as applicable,
having a market value of two times the exercise price of the Right.
The Rights expire on August 5, 2004, and until exercised,
the holder thereof, as such, will have no rights as a stockholder
of the Company. At the Company's option, the Rights may be
redeemed in whole at a price of $.01 per Right at any time prior to
becoming exercisable. In general, the Company may also exchange
the Rights at a ratio of one share of Common Stock per Right after
becoming exercisable but prior to the acquisition of 50% or more of
the outstanding shares of Common Stock by any party.
Series A Preferred Stock issuable upon exercise of the
Rights will not be redeemable. Each share of Series A Preferred
Stock will have 1,000 votes and will be entitled to (a) a minimum
preferential quarterly dividend payment equal to the greater of
$25.00 per share or 1,000 times the amount of the dividends per
share paid on the Common Stock, (b) a liquidation preference in an
amount equal to the greater of $100 or 1,000 times the amount per
share paid on the Common Stock, and (c) a payment in connection
with a business combination (in which shares of Common Stock are
exchanged) equal to 1,000 times the amount per share paid on the
Common Stock.
Common Stock
Holders of the shares of Common Stock are entitled to
receive dividends when declared by the Board of Directors and after
payment of, or provision for, full cumulative dividends on and any
required redemptions of shares of Preferred Stock then outstanding.
Holders of the shares of Common Stock have one vote per share and
noncumulative voting rights, which means that holders of more than
50% of the shares of voting Common Stock can elect all the
directors if they choose to do so, and, in such event, the holders
of the remaining shares of Common Stock will not be able to elect
any directors. In the event of any voluntary or involuntary
liquidation or dissolution of the Company, holders of the shares of
Common Stock are to share ratably in the distributable assets of
the Company remaining after the satisfaction of the prior
preferential rights of the holders of the shares of Preferred Stock
and the satisfaction of all debts and liabilities of the Company.
Holders of the shares of Common Stock do not have preemptive
rights. The transfer agent for the Common Stock is Chemical Bank.
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 Certificate fixing
the preferences, limitations and relative rights of a particular
series of Preferred Stock.
General.
--------
Under the Certificate, the Board of Directors of the Company is
authorized, without further stockholder action, to provide for the
issuance of up to 10,000,000 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: (a)
the title and liquidation preference per share of such Preferred
Stock and the number of shares offered; (b) the price at which such
series will be issued; (c) 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; (d) any
redemption or sinking fund provisions of such series; (e) any
conversion provisions of such series; and (f) any additional
dividend, liquidation, redemption, sinking fund and other rights,
preferences, privileges, limitations and restrictions of such
series.
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 shares of Common
Stock.
Dividend Rights.
----------------
Holders of the shares 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 Company 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 shares of 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
Company 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 in
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 generally in the earnings or assets of the
Company.
Rights Upon Liquidation.
------------------------
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the holders of each
series of Preferred Stock will be entitled to receive out of the
assets of the Company available for distribution to stockholders
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 Company, the amounts
payable with respect to Preferred Stock of any series and any other
shares of stock of the Company ranking as to any such distribution
on a parity with such series of Preferred Stock are not paid in
full, the holders of shares of Preferred Stock of such series and
of such other shares will share ratably in any such distribution of
assets of the Company 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 Company 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 the Company 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 Company, 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 Company 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.
If, after giving notice of redemption to the holders of
a series of Preferred Stock, the Company deposits with a designated
bank funds sufficient to redeem such shares of 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 Company. 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 Delaware 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 Company 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 Delaware 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 (a)
the authorization of any class of stock ranking prior to or on
parity with shares of Preferred Stock or the increase in the number
of authorized shares of any such stock, (b) any increase in the
number of authorized shares of shares of Preferred Stock, and (c)
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
Company and be described in the applicable Prospectus Supplement.
The registrar for shares of Preferred Stock will send notices to
stockholders of any meetings at which holders of the shares of
Preferred Stock have the right to vote on any matter.
Redemption and Restrictions on Transfer
In order to preserve the Company's status as a REIT as
defined in the Code, the Company can redeem or stop the transfer of
its shares. The Company's Certificate of Incorporation provides
that the Company 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 stockholders during the last six months of any year
would result in the disqualification of the Company as a REIT, the
Company's Certificate of Incorporation provides that the Company
has the power to treat any transfer or issuance resulting in the
9.8% to be exceeded as null and void and treat the stockholder as
holding the securities on behalf of the Company.
REIT Qualification
Generally, for each taxable year during which the Company
qualifies as a real estate investment trust, it will not be taxed
on the portion of its taxable income (including capital gains) that
is distributed to stockholders. Any undistributed income or gains
will be taxed to the Company at regular corporate tax rates. The
Company will be subject to tax at the highest corporate rate on its
net income from foreclosure property, regardless of the amount of
its distributions. The highest corporate tax rate is currently
35%. Failure to qualify could result in the Company's incurring
indebtedness and perhaps liquidating investments in order to pay
the resulting taxes.
PLAN OF DISTRIBUTION
The Company 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 or 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 Company 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 the Prospectus Supplement. In
connection with the sale of the Offered Securities, underwriters
may be deemed to have received compensation from the Company 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 agents.
Any underwriting compensation paid by the Company to
underwriters or agents in connection with the offering of Offered
Securities and any discounts, concessions, or commissions allowed
by the underwriters to participating dealers would 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
Company, to indemnification against and contribution toward certain
civil liabilities, including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement,
the Company will authorize dealers acting as the Company's agents
to solicit offers by certain institutions to purchase Offered
Securities from the Company at the public offering price set forth
in the 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 or more
than the respective amount stated in such Prospectus Supplement.
Institutions with which Contracts, when authorized, may be made
with commercial and savings banks, insurance companies, pension
funds, investment companies, education and charitable institutions
and other institutions, but will in all cases be subject to the
approval of the Company. Contracts will not be subject to any
conditions except (a) 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 (b) the
Company shall have sold to such underwriters the total principal
amount of the Offered Securities less the principal amount thereof
covered by Contracts. The commission indicated in the Prospectus
Supplement will be paid to agents and underwriters soliciting
purchases of Offered Securities pursuant to Contracts accepted by
the Company. Agents and underwriters shall have no responsibility
in respect to this delivery or performance of Contracts.
Certain of the underwriters and their affiliates may be
customers of, engaged in transaction with, and perform services
for, the Company in the ordinary course of business.
LEGAL OPINIONS
The validity of the Offered Securities will be passed
upon by Shumaker, Loop & Kendrick, Toledo, Ohio.
EXPERTS
The consolidated financial statements of Health Care
REIT, Inc. appearing in Health Care REIT, Inc.'s Annual Report
(Form 10-K) for the year ended December 31, 1994 as amended, have
been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included 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.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Expenses payable in connection with the issuance and
distribution of the securities to be registered, other than
underwriting discounts and commissions, are estimated as follows:
Securities and Exchange Commission filing fees . . . $
National Association of Securities Dealers, Inc.
filing fee . . . . . . . . . . . . . . . . . . .
New York Stock Exchange listing fee. . . . . . . . .
Transfer Agent and Registrar fees. . . . . . . . . .
Blue Sky fees and expenses . . . . . . . . . . . . .
Printing and engraving expenses and postage. . . . .
Legal fees and expenses. . . . . . . . . . . . . . .
Accounting fees and expenses . . . . . . . . . . . .
Miscellaneous. . . . . . . . . . . . . . . . . . . . ________
TOTAL . . . . . . . . . . . . . . . . . . . . . $========
Item 15. Indemnification of Officers and Directors.
Section 7 of the Company's Restated Certificate of
Incorporation, as amended (the "Restated Certificate") provides
that a director of the Company shall not be personally liable to
the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which
involve international misconduct or a knowing violation of law,
(iii) under Section 174 of the General Corporation Law of Delaware
(the "GCL"), or (iv) for any transaction from which the director
derived any improper personal benefit. Section 7 also provides
that if the GCL is amended to further eliminate or limit the
personal liability of directors, then the liability of a director
of the Company shall be eliminated or limited to the extent
permitted by the GCL, as so amended. The Restated Certificate also
states that any repeal or modification of the foregoing paragraph
by the stockholders of the Company shall not adversely affect any
right or protection of a director of the Company existing at the
time of such repeal or modification.
The Company's By-Laws (the "By-Laws") provide that the Company
shall indemnify, to the extent permitted by the GCL, any person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director or officer of the Company,
or is or was serving at the request of the Company as a director,
officer, employee, trustee, partner or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, actually and reasonably incurred by him
in connection with such action, suit or proceeding.
Item 16. Exhibits
Exhibit
Number Exhibit
------- -------
4.1(1) Second Restated Certificate of Incorporation.
4.2(2) By-Laws of Health Care REIT, Inc.
4.3(3) Rights Agreement.
4.4 Form of Indenture
5.1 Opinion of Shumaker, Loop & Kendrick.
23.1 Consent of Ernst & Young, LLP, independent
public auditors.
23.2 Consent of Shumaker, Loop & Kendrick to the use
of their opinion as an exhibit to this
Registration Statement is included in their
opinion filed herewith as Exhibit 5.1.
24.1 Powers of Attorney.
_________________
(1) Previously filed as Exhibit 3(i) to the Company's Annual
Report (Form 10-K) for the year ended December 31, 1994.
(2) Previously filed as Exhibit 3(ii) to the Company's Annual
Report (Form 10-K) for the year ended December 31, 1994.
(3) Previously filed as an Exhibit to the Company's Form 8-A
filed August 3, 1994 (File No. 1-8923).
Item 17. Undertakings
(A) The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by section
18(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.
Notwithstanding the foregoing, 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 end 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 charges in volume and price represent no more than a 20% 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 paragraphs (1)(i) and (1)(ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in the 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.
(B) 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 section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the 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.
(C) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the Company pursuant to the foregoing
provisions or otherwise, the Company has been advised that 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 a claim for
indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being
registered, the Company 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.
(D) The undersigned registrant hereby undertakes that:
(i) 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 a form of prospectus filed by the
Company pursuant to Rule 424(b)(i) 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.
(ii) For purposes 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.
(E) The undersigned registrant hereby undertakes to file an
application for the purpose 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 Trust
Indenture Act.
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 amendment to registration statement to
be signed on its behalf by the undersigned thereunto duly
authorized in the City of Toledo, State of Ohio on February 9,
1996.
HEALTH CARE REIT, INC.
By: /S/ Bruce G. Thompson
----------------------------
Bruce G. Thompson
Chairman of the Board and
Principal Executive Officer
Pursuant to the requirements of the Securities Act of
1933, this registration statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
- ----------------------- ----------------------- ----------------
/S/ BRUCE G. THOMPSON Director and Principal
Bruce G. Thompson Executive Officer December 7, 1995
/S/ ROBERT J. PRUGER Principal Financial
Robert J. Pruger Officer December 7, 1995
/S/ KATHLEEN S. PREPHAN Principal Accounting
Kathleen S. Prephan Officer December 7, 1995
/S/ PIER C. BORRA Director December 14, 1995
Pier C. Borra
/S/ GEORGE L. CHAPMAN President and Director December 7, 1995
George L. Chapman
/S/ GEORGE CHOPIVSKY, JR. Director December 12, 1995
George Chopivsky, Jr.
/S/ BRUCE DOUGLAS* Director December 7, 1995
Bruce Douglas
/S/ RICHARD C. GLOWACKI Director December 9, 1995
Richard C. Glowacki
/S/ SHARON M. OSTER Director December 12, 1995
Sharon M. Oster
/S/ RICHARD A. UNVERFERTH* Director December 7, 1995
Richard A. Unverferth
/S/ FREDERIC D. WOLFE* Director December 7, 1995
Frederic D. Wolfe
*By:/S/ BRUCE G. THOMPSON
Bruce G. Thompson, Attorney-in-Fact
EXHIBIT 4.4
HEALTH CARE REIT, INC.,
Issuer
to
_______________________________________
Trustee
INDENTURE
Dated as of _________________, 199_
Debt Securities
<PAGE>
HEALTH CARE REIT, INC.
Reconciliation between Trust Indenture Act of 1939
and Indenture dated as of _________________, 199_.
Trust Indenture Indenture
Act Section Section
- --------------- -------------
S. 310(a)(1) . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 608
610
S. 311(a) . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . 613
S. 312(a) . . . . . . . . . . . . . . . . . . . 701
702
(b) . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . 702
S. 313(a) . . . . . . . . . . . . . . . . . . . 703
(b) . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . 703
S. 314(a) . . . . . . . . . . . . . . . . . . . 704; 101
(a)(4) . . . . . . . . . . . . . . . . . . . 1004
(b) . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . 102
S. 315(a) . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . 513
S. 316(a) . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A). . . . . . . . . . . . . . . . . . 502
512
(a)(1)(B). . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . 104
S. 317(a)(1) . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . 1003
S. 318(a) . . . . . . . . . . . . . . . . . . . 107
__________________
Note: This reconciliation shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
HEALTH CARE REIT, INC.
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Page
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions . . . . . 6
SECTION 103. Form of Documents Delivered to Trustee . . . . 7
SECTION 104. Acts of Holders; Record Dates . . . . . . . . . 7
SECTION 105. Notices to Trustee and Company . . . . . . . . 9
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . 9
SECTION 107. Conflict with Trust Indenture Act . . . . . . . 9
SECTION 108. Effect of Headings and Table of Contents. . . . 9
SECTION 109. Successors and Assigns . . . . . . . . . . . . 10
SECTION 110. Separability Clause . . . . . . . . . . . . . . 10
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . 10
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . 10
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . 10
SECTION 114. Incorporators, Stockholders, Officers
and Directors of the Company Exempt
from Individual Liability . . . . . . . . . . . 10
ARTICLE TWO
FORMS OF SECURITIES
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . 11
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms . . . . . . . . . . . . . . . . 11
SECTION 302. Denominations . . . . . . . . . . . . . . . . . 13
SECTION 303. Execution, Authentication, Delivery
and Dating. . . . . . . . . . . . . . . . . . . 14
SECTION 304. Temporary Securities. . . . . . . . . . . . . . 15
SECTION 305. Registration, Registration of Transfer
and Exchange. . . . . . . . . . . . . . . . . . 15
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities. . . . . . . . . . . . . . . . . . . 16
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . 16
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . 17
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . 18
SECTION 310. Computation of Interest . . . . . . . . . . . . 18
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . 18
SECTION 402. Application of Trust Money. . . . . . . . . . . 19
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . 19
SECTION 502. Acceleration of Maturity, Rescission
and Annulment . . . . . . . . . . . . . . . . . 20
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . 21
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . 21
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities. . . . . . . . . . . . 22
SECTION 506. Application of Money Collected. . . . . . . . . 22
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . 22
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to
Convert . . . . . . . . . . . . . . . . . . . . 23
SECTION 509. Restoration of Rights and Remedies. . . . . . . 23
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . 23
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . 23
SECTION 512. Control by Holders. . . . . . . . . . . . . . . 23
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . 24
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . 24
SECTION 515. Waiver of Stay or Extension Laws. . . . . . . . 24
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities . . . . . . 24
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . 25
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . 25
SECTION 604. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . 25
SECTION 605. May Hold Securities . . . . . . . . . . . . . . 26
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . 26
SECTION 607. Compensation and Reimbursement. . . . . . . . . 26
SECTION 608. Disqualification; Conflicting Interest. . . . . 26
SECTION 609. Corporate Trustee Required; Eligibility . . . . 26
SECTION 610. Resignation and Removal; Appointment
of Successor. . . . . . . . . . . . . . . . . . 27
SECTION 611. Acceptance of Appointment by Successor. . . . . 28
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . . . 28
SECTION 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . . . 29
SECTION 614. Appointment of Authenticating Agent . . . . . . 29
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE
AND COMPANY
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders. . . . . . . . . . . . . . 30
SECTION 702. Preservation of Information; Communications
to Holders. . . . . . . . . . . . . . . . . . . 30
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . 31
SECTION 704. Reports by Company. . . . . . . . . . . . . . . 31
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Only on Certain
Terms . . . . . . . . . . . . . . . . . . . . . 31
SECTION 802. Successor Substituted for Company . . . . . . . 32
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent
of Holders. . . . . . . . . . . . . . . . . . . 32
SECTION 902. Supplemental Indentures with Consent
of Holders. . . . . . . . . . . . . . . . . . . 33
SECTION 903. Execution of Supplemental Indentures. . . . . . 34
SECTION 904. Effect of Supplemental Indentures . . . . . . . 34
SECTION 905. Conformity with Trust Indenture Act . . . . . . 34
SECTION 906. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . 34
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest . . 35
SECTION 1002. Maintenance of Office or Agency. . . . . . . . 35
SECTION 1003. Money for Security Payments to be Held
in Trust . . . . . . . . . . . . . . . . . . . 35
SECTION 1004. Statements of Officers of Company as
to Default . . . . . . . . . . . . . . . . . . 36
SECTION 1005. Existence. . . . . . . . . . . . . . . . . . . 36
SECTION 1006. Maintenance of Properties. . . . . . . . . . . 37
SECTION 1007. Payment of Taxes and Other Claims. . . . . . . 37
SECTION 1008. Waiver of Certain Covenants. . . . . . . . . . 37
SECTION 1009. Further Instruments and Acts . . . . . . . . . 37
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . 37
SECTION 1102. Election to Redeem; Notice to Trustee. . . . . 38
SECTION 1103. Selection by Trustee of Securities
to Be Redeemed . . . . . . . . . . . . . . . . 38
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . 38
SECTION 1105. Deposit of Redemption Price. . . . . . . . . . 39
SECTION 1106. Securities Payable on Redemption Date. . . . . 39
SECTION 1107. Securities Redeemed in Part. . . . . . . . . . 39
SECTION 1108. Conversion Arrangements on Call for
Redemption . . . . . . . . . . . . . . . . . . 40
ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 1201. Conversion Privilege and Conversion Price. . . 40
SECTION 1202. Exercise of Conversion Privilege . . . . . . . 41
SECTION 1203. Fractions of Shares. . . . . . . . . . . . . . 42
SECTION 1204. Adjustment of Conversion Price . . . . . . . . 42
SECTION 1205. Notice of Adjustments of Conversion Price. . . 44
SECTION 1206. Notice of Certain Corporate Activities . . . . 45
SECTION 1207. Company to Reserve Common Stock. . . . . . . . 45
SECTION 1208. Taxes on Conversions . . . . . . . . . . . . . 45
SECTION 1209. Covenant as to Common Stock. . . . . . . . . . 45
SECTION 1210. Cancellation of Converted Securities . . . . . 46
SECTION 1211. Provisions in Case of Consolidation,
Merger or Sale of Assets . . . . . . . . . . . 46
SECTION 1212. Trustee Adjustment Disclaimer. . . . . . . . . 46
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Agreement to Subordinate by Company. . . . . . 47
SECTION 1302. Distribution on Dissolution, Liquidation
and Reorganization . . . . . . . . . . . . . . 47
SECTION 1303. Subrogation to Rights of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . 48
SECTION 1304. Trustee Not Fiduciary for Holders of
Senior Indebtedness. . . . . . . . . . . . . . 48
SECTION 1305. Prior Payment to Senior Indebtedness Upon
Acceleration of Securities . . . . . . . . . . 48
SECTION 1306. No Payment in Event of Default on
Senior Indebtedness. . . . . . . . . . . . . . 49
SECTION 1307. Payments Permitted If No Default . . . . . . . 49
SECTION 1308. Provisions Solely to Define Relative Rights. . 49
SECTION 1309. Authorization to Trustee to Effect
Subordination. . . . . . . . . . . . . . . . . 50
SECTION 1310. No Waiver of Subordination Provisions. . . . . 50
SECTION 1311. Notices to Trustee . . . . . . . . . . . . . . 50
SECTION 1312. Trustee as Holder of Senior Indebtedness . . . 51
SECTION 1313. Reliance on Judicial Order or Certificate
of Liquidating Agent . . . . . . . . . . . . . 51
SECTION 1314. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's
Rights . . . . . . . . . . . . . . . . . . . . 51
SECTION 1315. Article Applicable to Paying Agents. . . . . . 51
SECTION 1316. Certain Conversions Deemed Payment . . . . . . 51
SECTION 1317. Trust Moneys Not Subordinated. . . . . . . . . 52
SECTION 1318. Modification of Terms of Senior
Indebtedness . . . . . . . . . . . . . . . . . 52
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or
Covenant Defeasance. . . . . . . . . . . . . . 52
SECTION 1402. Defeasance and Discharge . . . . . . . . . . . 52
SECTION 1403. Covenant Defeasance. . . . . . . . . . . . . . 53
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . 53
SECTION 1405. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions . . . . . . . . . . . 55
SECTION 1406. Reinstatement. . . . . . . . . . . . . . . . . 55
SECTION 1407. Securities Redeemed in Part. . . . . . . . . . 55
ARTICLE FIFTEEN
SINKING FUNDS
SECTION 1501. Applicability of Article . . . . . . . . . . . 56
SECTION 1502. Satisfaction of Sinking Fund Payments
with Securities. . . . . . . . . . . . . . . . 56
SECTION 1503. Redemption of Securities for Sinking Fund. . . 56
______________________
Note: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE>
INDENTURE, dated as of _________________, 199_, between HEALTH CARE
REIT, INC., a Delaware corporation (the "Company"), having its
principal office at One SeaGate, Suite 1950, Toledo, Ohio 43604,
and _____________________________________, as Trustee (the
"Trustee").
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(d) 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;
and
(e) unless otherwise specifically stated herein, the
words "Article" and "Section" refer to an Article and Section,
respectively, of this Indenture.
Certain terms, used principally in Article Six, are defined
in that Article.
"Act," when used with respect to any Holder, 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 Company 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 Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to
authenticate Securities.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company 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" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions that Place of Payment are authorized or obligated by
law or executive order to close.
"Capital Stock" means, with respect to any corporation, any
and all shares, interests, rights to purchase, warrants, options,
participations or other equivalents of or interests (however
designated) in stock issued by that corporation.
"Closing Price" on any Trading Day with respect to the per
share price of Common Stock means the last reported sales price
regular way or, in case no such reported sale takes place on such
Day, the average of the reported closing bid and asked prices
regular way, on the New York Stock Exchange.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the 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 at such time.
"Common Stock" includes any stock of any class of the
Company which has no preference in respect of dividends or of
amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and which is
not subject to redemption by the Company. However, subject to the
provisions of Section 301(17) and (18) and Section 1211, shares
issuable on conversions of Securities shall include only shares of
the class designated as Common Stock of the Company at the date of
this Indenture or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no
preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or
winding-up of the Company and which are not subject to redemption
by the Company; provided that if at any time there shall be more
than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion which the
total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such
classes resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the
first paragraph of this instrument until a successor Person shall
have become such pursuant to the applicable provisions of this
Indenture and thereafter "Company" shall mean such successor
Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the
Board, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee in _______________, at which at any particular time its
corporate trust business shall be administered.
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Covenant Defeasance" has the meaning specified in Section
1403.
"Defaulted Interest" has the meaning specified in Section
307.
"Defeasance" has the meaning specified in Section 1402.
"Defeasible Series" has the meaning specified in Section
1401.
"Depository" means with respect to Securities of any series
issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Exchange Act
that is designated to act as Depository for such Securities as
contemplated by Section 301.
"Designated Senior Indebtedness" means any Senior
Indebtedness in an aggregate principal amount of $5 million or
more.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"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 including, for all purposes of this
instrument, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall
also include the terms of particular series of Securities
established as contemplated by Section 301.
"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 by which its terms bears interest only after
Maturity, means interest payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"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 Company to the
Holder thereof in connection with any optional redemption or
accelerated payment of such Security.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security becomes due and
payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, or
otherwise.
"Non-Payment Default" means, at any time when the Company has
outstanding obligations constituting Designated Senior
Indebtedness, the occurrence or existence of any event,
circumstance, condition or state of facts that, by the terms of
such Designated Senior Indebtedness, permits one or more holders of
such obligations (or a trustee or agent on behalf of the holders
thereof) to declare such obligations immediately due and payable
prior to the date on which they would otherwise become due and
payable, other than a Payment Default.
"Notice of Default" means written notice of the kind
specified in Section 501(4).
"Obligation" of any Person means any obligation of such
Person to pay principal, premium, interest (including interest
accruing on or after the filing of any petition in bankruptcy or
for reorganization relating to the Company, whether or not a claim
for such post-petition interest is allowed in such proceeding),
penalties, reimbursement or indemnification amounts, fees, expenses
or other amounts.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company and delivered to the Trustee;
provided, however, that for purposes of Section 1004, "Officers'
Certificate" means a certificate signed by the principal executive
officer, principal financial officer or principal accounting
officer of the Company.
"Opinion of Counsel" means a written opinion of counsel
reasonably acceptable to the Trustee which may include counsel for
the Company.
"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 canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided that if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) Securities as to which Defeasance has been
effected pursuant to Section 1402; and
(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 Company proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company and the Trustee
shall have received notice from the Company that such Securities
are Outstanding;
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, (A) the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable
as of the date of such determination upon acceleration of the
Maturity thereof to such date pursuant to Section 502, (B) the
principal amount of a Security denominated in one or more foreign
currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 301 on
the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security the
U.S. dollar equivalent on the date of original issuance of such
security of the amount determined as provided in Clause (A) above)
of such Security, and (C) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company
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 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 Company
or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any
Securities on behalf of the Company.
"Payment Blockage Period" has the meaning specified in
Section 1303.
"Payment Default" means a default in the payment of any
principal of, or premium, if any, interest or sinking fund on, or
other payment obligation of the Company, constituting Designated
Senior Indebtedness when due, whether at the Stated Maturity of any
such payment, or by declaration of acceleration, call for
redemption, or otherwise.
"Person" means any individual, corporation, partnership,
joint venture, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"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 shall be deemed to evidence the same debt
as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture, including as applicable without duplication, any
premium or accrued interest due upon such redemption pursuant to
the terms of this Indenture.
"Regular Record Date" for the interest payable on any
Interest Payment Date means the date specified for that purpose as
contemplated by Section 301.
"REIT" means a real estate investment trust as defined by
Section 8.56 et seq. of the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder.
"Responsible Officer," when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors,
the chairman or any vice-chairman of the executive committee of the
board of directors, the chairman of the trust committee, the
president, any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of
the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means,
with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge
of, and familiarity with, the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means the principal of and premium, if
any, and unpaid interest on, (a) all indebtedness of the Company
(including indebtedness of others guaranteed by the Company) other
than the Securities, which is (i) for money borrowed or (ii)
evidenced by a note or similar instrument given in connection with
the acquisition of any business, properties or assets of any kind,
(b) obligations of the Company as lessee under leases required to
be capitalized on the balance sheet of the lessee under generally
accepted accounting principles, and (c) amendments, renewals,
extensions, modifications and refundings of any such indebtedness
or obligation, in any such case whether outstanding on the date of
this Indenture or thereafter created, incurred or assumed, unless
in any case the instrument creating or evidencing any such
indebtedness or obligation or pursuant to which the same is
outstanding it is proved that such indebtedness or obligation is
not superior in right of payment to the Securities or it is
provided that such obligation is subordinated to Senior
Indebtedness to substantially the same extent as the Securities are
subordinated to Senior Indebtedness.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or
any installment of interest thereon, means the date specified in
such Security as the fixed date on which the principal of such
Security or such installment of interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly,
by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of
this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or
only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday, other than any day on which securities are not traded
on the applicable securities exchange or in the applicable
securities market.
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed,
except as provided in Section 905; provided that in the event the
Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument 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, and if at any time there is
more than one such person, "Trustee" as used with respect to the
Securities of any Series shall mean each Trustee with respect to
Securities of that Series.
"U.S. Government Obligations" has the meaning specified in
Section 1404.
"Vice President," when used with respect to the Company or
the Trustee, means any vice president, whether or not designated by
a number or a word or words added before or after the title "vice
president."
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this
Indenture 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 (including
certificates provided for in Section 1004) shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) 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;
(c) 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 covenant or condition has been complied with;
and
(d) 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 with respect 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 Company may
be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect to the matters upon which his certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel
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 Company, stating that the information with respect
to such factual matters is in the possession of the Company, unless
such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with
respect 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; Record Dates.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in, and evidenced
by, one or more instruments of substantially similar tenor signed
by such Holders in person, or by an 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 and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive
in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(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
manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) 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 or the Company
in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may, in the circumstance permitted by
the Trust Indenture Act, set any day as the record date for the
purpose of determining the Holders of Outstanding Securities of any
series entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver, or other action provided or
permitted by this Indenture to be given or taken by Holders of
Securities of such series. With regard to any record date set
pursuant to this paragraph, the Holders of Outstanding Securities
of the relevant series on such record date (or their duly appointed
agents), and only such persons, shall be entitled to give or take
the relevant action, whether or not such Holders remain Holders
after such record date. With regard to any action that may be
given or taken hereunder only by Holders of a requisite principal
amount of Outstanding Securities of any series (or their duly
appointed agents) and for which a record date is set pursuant to
this paragraph, the Company may, at its option, set an expiration
date after which no such action purported to be given or taken by
any Holder shall be effective hereunder unless given or taken on or
prior to such expiration date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date
(or their duly appointed agents). On or prior to any expiration
date set pursuant to this paragraph, the Company may, on one or
more occasions at its option, extend such date to any later date.
Nothing in this paragraph shall prevent any Holder (or any duly
appointed agent thereof) from giving or taking, after any such
expiration date, any action identical to, or, at any time, contrary
to or different from, the action or purported action to which such
expiration date relates, in which event the Company may set a
record date in respect thereof pursuant to this paragraph. Nothing
in this paragraph shall be construed to render ineffective any
action taken at any time by the Holders (or their duly appointed
agents) of the requisite principal amount of Outstanding Securities
of the relevant series on the date such action is so taken.
Notwithstanding the foregoing or the Trust Indenture Act, the
Company shall not set a record date for, and provisions of this
paragraph shall not apply with respect to, any notice, declaration
or direction referred to in the next paragraph.
Upon receipt by the Trustee from any Holder of Securities of
a particular series of (i) any notice of default or breach referred
to in Section 501(4) with respect to Securities of such series, if
such default or breach has occurred and is continuing and the
Trustee shall not have given such notice to the Company, (ii) any
declaration of acceleration referred to in Section 502, if an Event
of Default with respect to Securities of such series has occurred
and is continuing and the Trustee shall not have given such a
declaration to the Company, or (iii) any direction referred to in
Section 512 with respect to Securities of such series, if the
Trustee shall not have taken the action specified in such
direction, then a record date shall automatically and without any
action by the Company or the Trustee be set for determining the
Holders of Outstanding Securities of such series entitled to join
in such notice, declaration or direction, which record date shall
be the close of business on the tenth day following the day on
which the Trustee receives such notice, declaration or direction.
Promptly after such receipt by the Trustee, and in any case not
later than the fifth day thereafter, the Trustee shall notify the
Company and the Holders of Outstanding Series of such series of any
such record date so fixed. The holders of Outstanding Securities
of such series on such record date (or their duly appointed
agents), and only such Persons, shall be entitled to join in such
notice, declaration or direction, whether or not such Holders
remain Holders after such record date; provided that unless such
notice, declaration or direction shall have become effective by
virtue of Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly
appointed agents) having joined therein on or prior to the 90th day
after such record date, such notice, declaration or direction shall
automatically and without any action by any Person be cancelled and
of no further effect. Nothing in this paragraph shall be construed
to prevent a Holder (or a duly appointed agent thereof) from
giving, before or after the expiration of such 90-day period, a
notice, declaration or direction contrary to or different from, or,
after the expiration of such period, identical to, the notice,
declaration or direction to which such record date relates, in
which event a new record date in respect thereof shall be set
pursuant to this paragraph. Nothing in this paragraph shall be
construed to render ineffective any notice, declaration or
direction of the type referred to in this paragraph given at any
time to the Trustee and the Company by Holders (or their duly
appointed agents) of the requisite principal amount of Outstanding
Securities of the relevant series on the date such notice,
declaration or direction is so given.
Without limiting the foregoing, a Holder entitled hereunder
to give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal
amount of such Security or by one or more duly appointed agents
each of which may do so pursuant to such appointment with regard to
all or any different part of such principal amount.
SECTION 105. Notices to Trustee and Company.
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,
(a) the Trustee, by any Holder or by the Company, 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
(b) the Company 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 Company, addressed to it at the address of its
principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each 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 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. 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.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
provision of the Trust Indenture Act that is required under such
Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the provisions of the Trust Indenture Act
shall be deemed to apply to this Indenture as so modified, or if
excluded shall not be deemed to apply to this Indenture, as the
case may be.
SECTION 108. 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 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities
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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto
and their successors hereunder, the holders of Senior Indebtedness
and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of Delaware,
without regard to principles of conflicts of laws as applied in
such state.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security or the last date on which a
Holder has the right to convert his Securities shall not be a
Business Day, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal
(and premium, if any) or conversion of the Securities need not be
made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, or on
such last day for conversion, provided that no interest shall
accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, if such
payment is made or duly provided for on the next succeeding
Business Day.
SECTION 114. Incorporators, Stockholders, Officers and Directors
of the Company Exempt from Individual Liability.
No recourse under or upon any obligation, covenant or
agreement of this Indenture or any indenture supplemental hereto or
of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future,
of the Company, or of any successor Person, either directly or
through the Company or any successor Person, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder
are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by
the incorporators, stockholders, officers or directors, as such, of
the Company or of any successor Person, or any of them, because of
the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in
this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability of every name and
nature, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every
such incorporator, stockholder, officer or director, as such,
because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied
therefrom are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and
the issue of such Securities.
ARTICLE TWO
FORMS OF SECURITIES
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of
authentication shall be in substantially the forms set forth in a
Prospectus Supplement and/or Supplemental Indenture, with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution thereof, with the
consent of the Trustee.
The definitive Securities relating thereto shall be printed,
lithographed or engraved or produced by any combination of these
methods on steel engraved borders or may be produced in any other
manner permitted by the rules of any securities exchange on which
the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution thereof,
with the consent of the Trustee.
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to
$200,000,000.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and,
subject to Section 303, set forth, or determined in the manner
provided, in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from Securities of
any other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which 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 the series pursuant to Sections
304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(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 Maturity thereof, or (if
applicable) the portion of the principal amount of such Debt
Securities that is convertible into Capital Stock of the Company or
the method by which any such portion will be determined;
(4) the date or dates, or the method by which such date
or dates will be determined, on which the principal of the
Securities of the series is payable;
(5) the rate or rates (which may be fixed or variable)
at which the Securities of the series shall bear interest, if any,
or the Method by which such rate or rates will be determined, the
date or dates from which such interest shall accrue, the Interest
Payment Dates on which any such interest shall 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;
(6) the place or places where the principal of (and
premium or Make-Whole Amount, if any) interest, if any, and
Additional Amounts, if any, payable in respect of, such Securities
will be payable, where such Securities may be surrendered for
registration of, transfer or exchange and where notices or demands
to or upon the Company in respect of such Securities and the
applicable Indenture may be served;
(7) 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 Securities of the series may be redeemed, in whole or in
part, at the option of the Company if the Company is to have the
option;
(8) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of Holder thereof and
the period or periods within 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 the series shall be redeemed or purchased,
in whole or in part, pursuant to such obligation;
(9) whether such Securities will be in registered or
bearer form and terms and conditions relating thereto, and if other
than denominations of $1,000 and any integral multiple thereof, the
denominations in which any registered Securities of the series
shall be issuable and, if other than $1,000 the denomination or
denominations in which any bearer Securities will be issuable;
(10) if other than United States dollars, the currency,
currencies or currency units in which payment of the principal of
and any premium and interest on any Securities of the series shall
be denominated and payable, which may be a foreign currency or
units of two or more foreign currencies or a composite currency or
currencies;
(11) whether the amount of payments of principal (and
premium or Make-Whole Amount, if any) or interest on any Securities
of 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,
commodities, equity indices or other indices) and the manner in
which such amounts shall be determined;
(12) whether the principal (and premium or Make-Whole
Amount, if any) or interest or Additional Amounts on any Securities
of the series is to be payable, at the election of the Company or
a Holder thereof, in one more currencies or currency units other
than that or those in which the 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 the identity of the exchange rate agent
with responsibility for, determining the exchange rate between the
currency, currencies or currency units or composite currency in
which payment of the principal of and any premium and interest on
Securities of such series are denominated or stated to be payable
and the currency, currencies, or currency units or composite
currencies in which such Securities are to be so payable;
(13) provisions, if any, granting special rights to the
Holders of such Securities upon the occurrence of such events as
may be specified;
(14) any deletions from, modifications of or additions
to the Events of Default or covenants of the Company with respect
to such 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;
(15) whether such Debt Securities will be issued in
certificated or book-entry form;
(16) whether and under what circumstances the Company
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 Company will have
the option to redeem such Securities rather than pay such
Additional Amounts (and the terms of any such option);
(17) in connection with the preservation of the
Company's status as a REIT, the terms and conditions, if any,
pursuant to which the Securities are convertible into Common Stock
of the Company pursuant to Article Twelve, and any variation
thereof;
(18) the terms and conditions, if any, pursuant to which
the Securities are convertible into or exchangeable for any other
securities;
(19) whether and under what circumstances the Company
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 Company will have
the option to redeem such Securities rather than pay such
Additional Amounts (and the terms of any such option); and
(20) any other terms of such Securities not inconsistent
with the provisions of the applicable Indenture.
The 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") Special
United States federal income tax, accounting and other
considerations applicable to Original Issue Discount Securities
will be described in the applicable Prospectus Supplement.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the manner
provided, in the Officers' Certificate referred to above or in any
such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an
Assistance Secretary of the Company and delivered to the Trustee at
or prior to the delivery of the Officers' Certificate setting forth
the terms of the series.
The Securities shall be redeemable as provided in Article
Eleven.
The Securities shall be convertible as provided in Article
Twelve.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Thirteen.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form
without coupons and only in such denominations as shall be
specified as contemplated by Section 301. In the absence of any
such specified denomination with respect to the Securities of any
series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The signature
of any of these officers on the Securities may be manual or
facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall bind the Company, 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.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities
executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such
Securities.
If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, 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 Section 601) shall be fully
protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 201,
that such form has been established in conformity with the
provisions of this Indenture;
(2) if the terms of such Securities have been
established by or pursuant to Board Resolution as permitted by
Section 301, that such terms have been established in conformity
with the provisions of this Indenture; and
(3) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
If such form or terms have been so established, 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 or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonable
acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver
the Officers' Certificate otherwise required pursuant to Section
301 or the Company Order and Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the time of
authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by manual signature, 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.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company
may execute, and upon Company 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 and with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine,
as evidenced by their execution of such Securities with the consent
of the Trustee.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary
Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at any office or agency of
the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized
denominations. Until so exchanged the temporary Securities shall
in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer
and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such
office and in any other office or agency designated pursuant to
Section 1002 being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein
provided. Upon surrender for registration of transfer of any
Security at an office or agency of the Company designated pursuant
to Section 1002 for such purpose, the Company shall execute, and
the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of
any authorized denominations and of a like aggregate principal
amount. At the option of the Holder, Securities may be exchanged
for other Securities of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive. All Securities
issued upon any registration of transfer or exchange of Securities
shall be the valid obligations of the Company 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 Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and 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 Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Sections 304, 305(b),
906, 1108, or 1202 not involving any transfer. The Company shall
not be required (i) to issue, register the transfer of, or exchange
any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 1104 and ending at
the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the
Company evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Notwithstanding any other provisions in this Indenture, no
Global Security may be transferred to, or registered or exchanged
for Securities registered in the name of, any Person other than the
Depositary for such Global Security or any nominee thereof, and no
such transfer may be registered, unless (1) such Depositary (A)
notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or (B) ceases to be a clearing
agency registered under the Exchange Act, (2) the Company executes
and delivers to the Trustee a Company Order that such Global
Security, shall be so transferable, registrable and exchangeable,
and such transfers shall be registrable, (3) there shall have
occurred and be continuing an Event of Default with respect to the
Securities evidenced by such Global Security or (4) there shall
exist such other circumstances, if any, as have been specified for
this purpose as contemplated by Section 301. Notwithstanding any
other provision in this Indenture, a Global Security to which the
restriction set forth in the preceding sentence shall have ceased
to apply may be transferred only to, and may be registered and
exchanged for Securities registered only in the name or names of,
such Person or Persons as the Depositary for such Global Security
shall have directed and no transfer thereof other than such a
transfer may be registered.
Every Security authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, a Global
Security to which the restriction set forth in the first sentence
of the preceding paragraph shall apply, whether pursuant to this
Section, Sections 304, 306, 906 or 1007 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global
Security.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of like tenor and
principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or
theft of any Security 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 notice to the Company or the
Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the
Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor
and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this Section, the
Company 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 issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security 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 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.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which 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.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, within the applicable grace
period following any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date notwithstanding the fact
that such Holder was a Holder on such Regular Record Date, and such
Defaulted Interest may be paid by the Company at its election, as
provided in Clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities (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 Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money 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 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 no 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 Company of such Special Record Date and, in the name and
at the expense of the Company, 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
at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names the Securities (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 (b).
(b) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may
be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company 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, 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.
In the case of any Security which is converted after any
Regular Record Date and on or prior to the next succeeding Interest
Payment Date (other than any Security whose Maturity is prior to
such Interest Payment Date), subject to the obligation to deliver
funds pursuant to Section 1202, interest whose Stated Maturity is
on such Interest Payment Date shall be payable on such Interest
Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) 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
such Regular Record Date. Except as otherwise expressly provided
in the immediately preceding sentence, in the case of any Security
which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue,
and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange, conversion, credit against
any sinking fund payment, or repurchase shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee and
shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of, or in exchange for, any Securities
canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities held by the Trustee
shall be disposed of by the Trustee and a certificate of
destruction delivered to the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of conversion,
registration of transfer or exchange of Securities and rights of
the Trustee herein expressly provided for), and the Trustee, on
demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this
Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered
to the Trustee for cancellation have become due and payable and the
Company has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount sufficient to pay
and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium or Make-Whole Amount, if any) and interest
to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
(3) the Trustee has not received any notice pursuant to
the terms of Section 1306; and
(4) the Company 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 have been complied
with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company in Sections 305, 306,
607, 608, 702, 1001, 1002 and 1003 and in Article Twelve shall
survive until the Securities are no longer outstanding and the
obligations of the Company in Section 607 shall survive termination
of this Indenture.
SECTION 402. Application of Trust Money.
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 and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company
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 interest for whose payment such
money has been deposited with the Trustee. All moneys deposited
with the Trustee pursuant to Section 401 (and held by it or any
Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein, means any one of
the following events (whatever the reason for such Event of Default
and whether it shall be occasioned by the provisions of Article
Thirteen or 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 for 30 days in the payment of any
installment of interest or Additional Amounts payable upon any
Security of such series;
(2) default in making any sinking fund payment as
required for any Security of such series;
(3) default in the payment of the Redemption Price in
respect of any Security on the Redemption Date therefor in
accordance with the provisions of Article Eleven;
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (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
Company by the Trustee, or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities, 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;
(5) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company
(including a default with respect to Securities of any series other
than that series) having an aggregate principal amount outstanding
of at least $10,000,000, or under any mortgage, indenture or
instrument (including this Indenture) under which there may be
issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company 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 becoming or 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, in each such case within a
period of 10 days after there shall have been given, by registered
or certified mail, to the Company by the Trustee or to the Company
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 Company to cause such
indebtedness to be discharged or cause such acceleration to be
rescinded or annulled, as the case may be, and setting that such
notice is a "Notice of Default" hereunder; provided, however, that,
subject to the provisions of Sections 601 and 602, the Trustee
shall not be deemed to have knowledge of such default unless either
(A) a Responsible Officer of the Trustee shall have actual
knowledge of such default or (B) the Trustee shall have received
written notice thereof from the Company, from any Holder, from the
holder of any such indebtedness or from the trustee under such
mortgage, indenture or other instrument;
(6) certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator or
trustee of the Company or any Significant Subsidiary or for all or
substantially all of either of its property; and
(7) any other Event of Default provided with respect to
Securities of that Series.
The term "Significant Subsidiary" means each significant
subsidiary as defined in Regulation S-X promulgated under the
Securities Act of the Company.
SECTION 502. Acceleration of Maturity, Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in clause (6) of Section 501) 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 such
series may declare the principal amount (or, if any of the
Securities of that Series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof) of, and
premium or Make-Whole amount, if any, on, all the Securities of
that series to be due and payable, by a notice in writing to the
Company (and to the Trustee if given by Holders), and such
principal shall become immediately due and payable. If an Event of
Default specified in clause (6) of Section 501 with respect to
Securities of any series at the time Outstanding occurs, the
principal amount of all the Securities of that series (or, if any
Securities of that Series are Original Issue Discount Securities,
such portion of the principal amount of such securities as may be
specified in the terms thereof) shall automatically, and without
any declaration or other action on the part of the Trustee or any
Holder, shall become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
However, at any time after a declaration of acceleration with
respect to Securities of such Series (or of all 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 Securities of
that series (or of all Securities then Outstanding under the
applicable Indenture, as the case may be), by written notice to the
Company and the Trustee, may rescind and annul such declaration and
its consequences if:
(1) the Company 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
(2) all Events of Default, other than the non-payment of
the 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.
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 Company covenants that if
(1) default is made in the payment of any interest on
any Security when such interest 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) any Security at the
Maturity thereof, including payment of the Redemption Price on any
Redemption Date.
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then
due and payable on such Securities for principal (and premium or
Make-Whole Amount, if any) and interest, and, to the extent that
payment of such interest shall be legally enforceable, interest on
any overdue principal (and premium or Make-Whole Amount, if any)
and on any overdue interest, at the rate or rates prescribed
therefor 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 Company 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, may prosecute such proceeding to
judgment or final decree and may enforce the same against the
Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon
the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and
the rights of the Holders by such appropriate judicial proceedings
as the Trustee shall deem appropriate 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 Company or
any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities 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 Company for the payment of overdue principal 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 of
principal (and premium or Make-Whole Amount, if any) and interest
and Additional Amounts owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable and to take any and all actions authorized
under the Trust Indenture Act or any other applicable law as may be
appropriate 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 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 it for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under
Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without
the possession of any of the Securities 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 in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Thirteen, 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, upon presentation of the
Securities 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
under Section 607; and
SECOND: Subject to Article Thirteen, to the payment of
the amounts then due and unpaid for principal of (and premium or
Make-Whole Amount, if any) and interest on the Securities 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 amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to
whomsoever may be lawfully entitled thereto, or as a court of
competent jurisdiction may direct.
SECTION 507. Limitation on Suits.
No Holder of any Security 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;
(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 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 Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any
right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest and to Convert.
Notwithstanding any other provision in this Indenture, the
Holder of any Security 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 Section 307) interest
on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption, on the Redemption
Date) and to convert such Security in accordance with Article
Twelve and to institute suit for the enforcement of any such
payment and right to convert, 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 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, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall 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 in
the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security 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 from time to time, and
as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities 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, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
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 waive any past default
hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest on any Security,
(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, or
(3) in respect of the conversion rights under Article
Twelve.
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 impair any right
consequent thereon.
SECTION 514. Undertaking for Costs.
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, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party
litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit
instituted by the Company or in any suit for enforcement of the
right to convert any Security in accordance with Article Twelve.
SECTION 515. Waiver of Stay or Extension Laws.
The Company 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
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 Company (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.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the
foregoing, no provision of this Indenture shall require the Trustee
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 reasonable
assured to it. Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
A Trustee is required to give notice to the Holders of
Securities of any series within 90 days of a default under the
applicable Indenture; provided, however, that a Trustee may
withhold notice to the Holders of any series of 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 Security of
such series or in the payment of any sinking fund installment in
respect of any Security of such series) if the Responsible Officers
of such Trustee consider such withholding to be in the interest of
such Holders.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) 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, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) 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;
(d) the Trustee may consult with counsel and the written
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;
(e) 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 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;
(f) 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, other
evidence of indebtedness 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 Company, personally or by agent or attorney;
and
(g) 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.
SECTION 604. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained in the Securities, except the
Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture
or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds
thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee
of Securities and, subject to Sections 608 and 613, may otherwise
deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
SECTION 606. 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 any money
received by it hereunder except as otherwise agreed with the
Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it 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 the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to any action or failure to act by
the Trustee that breaches the applicable standard of care relating
thereto; and
(3) to indemnify the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred unless
incurred in connection with any action or failure to act by the
Trustee that breaches the applicable standard of care relating
thereto, arising out of or in connection with the acceptance or
administration of the trust 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.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in clause (6) of
Section 501, the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar
law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 608. Disqualification; Conflicting Interest.
The Trustee shall be subject to the provisions of Section
310(b) of the Trust Indenture Act. Nothing herein shall prevent
the Trustee from filing with the SEC the application referred to in
the penultimate paragraph of Section 310(b) of the Trust Indenture
Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one or more Trustees hereunder
with respect to the Securities of each series, at least one of
which is a Person that is eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by
federal or state authority. If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements
of said 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 610. 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 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by
a successor Trustee required by Section 611 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 by Act of the
Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by any Holder
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 609 and shall fail to resign after written request therefor
by the Company or by any such Holder, 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 Company by a Board Resolution may
remove the Trustee, or (ii) subject to Section 514, any Holder 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 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, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after
such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders
and accepted appointment in the manner required by Section 611, any
Holder 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
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation
and each removal of the Trustee and each appointment of a successor
Trustee by mailing written notice of such event by first-class
mail, postage prepaid, to all Holders as their names and addresses
appear in the Security Register. Each notice shall include the
name of the successor Trustee and the address of its Corporate
Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) Every successor Trustee appointed hereunder shall
execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective, the retiring Trustee shall be released from all
obligations for future actions under this Indenture 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 Company 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. Upon request of any such successor Trustee, the
Company 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.
(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 Company, 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 wherein each
successor Trustee shall accept such appointment and which (i) 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, (ii) 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 (iii) 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 Company 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.
Upon request of any such successor Trustee, the Company 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 paragraphs (a) and (b) of
this Section, as the case may be.
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 612. 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 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 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 so authenticated with the
same effect as if such successor Trustee had itself authenticated
such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee
shall be subject to the provisions of the Trust Indenture Act,
regarding the collection of claims against the Company (or any such
other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon
exchange, registration of transfer, partial conversion or partial
redemption thereof or pursuant to Section 306, 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. 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 Company and shall at all times be a corporation
organized and doing business under the laws of the United States of
America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to
supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least
annually pursuant to law or to the requirements of said 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. If 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 that such corporation shall be
otherwise eligible under this Section without the execution or
filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent
and to the Company. 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 may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage
prepaid, to all Holders as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with
all rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section, and the Trustee shall be entitled to be reimbursed for
such payments, subject to the provisions of Section 607.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternate certificate of
authentication in the following form:
This is one of the Securities described in the within
mentioned Indenture.
[insert name of trustee]
As Trustee
By: _____________________________
As Authenticating Agent
By: _____________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE
AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after each
Regular Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of
such Regular Record Date, and
(b) at such other times as the Trustee may request in
writing, within 10 Business Days after the receipt by the Company
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;
excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar. The
Trustee may destroy any list furnished to it as provided in Section
701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under
the Securities and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of any disclosure of information as to
names and addresses of Holders mad pursuant to the Trust Indenture
Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act at the times and in
the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange upon which the Securities are listed, with the
Commission and with the Company. The Company will notify the
Trustee when the Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act;
(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 Company 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 all Holders, in the manner and
to the extent provided in the Trust Indenture Act, such summaries
of any information, documents and reports required to be filed by
the Company 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.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Only on Certain Terms.
The Company shall not consolidate with or merge into any
other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and the Company shall
not permit any Person to consolidate with or merge into the Company
or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as
an entirety shall be a corporation, partnership or trust, organized
and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium and Make-
Whole Amount, if any) and interest on all the Securities and the
performance of every covenant of this Indenture on the part of the
Company to be performed or observed and shall have provided for
conversion rights in accordance with Section 1211;
(2) immediately after giving effect to such transaction
and treating an indebtedness which becomes an obligation of the
Company or any Subsidiary as a result of such transaction as having
been incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice
or lapse of time or both, would become an Event of Default, shall
have happened and be continuing;
(3) if, as a result of any consolidation or merger or
such conveyance, transfer, or lease, properties or assets of the
Company would become subject to a mortgage, pledge, lien, security
interest or other encumbrance which would not be permitted by this
Indenture, the Company or such successor Person, as the case may
be, shall take such steps as shall be necessary effectively to
secure the Securities equally and ratably with (or prior to) all
indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer or lease and, if
a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article
and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 802. Successor Substituted for Company.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor Person
formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by 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
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities in accordance with
Article Eight;
(2) to add to the covenants of the Company 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 Company;
(3) to add any additional Events of Default;
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Securities in
uncertificated form;
(5) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to
the execution of such supplemental indenture and entitled to the
benefit of such provision nor (ii) modify the rights of the Holder
of any such Security with respect to such provision or (B) shall
become effective only when there is no such Security Outstanding;
(6) to secure the Securities pursuant to the
requirements of Article Ten or otherwise;
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301;
(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, pursuant to the requirements of Section 611;
(9) to make provisions with respect to the conversion
rights of Holders pursuant to the requirements of Article Fourteen;
(10) 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,
provided that such action pursuant to this clause (10) shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect; or
(11) to add any other provisions not inconsistent with
the Act.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities, by Act of said
Holders delivered to the Company and the Trustee, the Company, when
authorized by 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 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) or any installment of
interest or Additional Amounts payable on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or any
premium or Make-Whole Amount, if any, or Additional Amount payable
upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security or Make-Whole Amount, if
any, or Additional Amount that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change the Place of Payment where, or the coin or
currency in which, any Security or any premium or Make-whole
Amount, if any, or Additional Amount, 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, on or after the Redemption Date or, in the
case of a repurchase pursuant to Article Fourteen, on or after the
Change of Control Purchase Date), or adversely affect the right to
convert any Security as provided in Article Twelve (except as
permitted by Section 901(5)) or modify the provisions of this
Indenture with respect to the subordination of the Securities in a
manner adverse to the Holders;
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture; or
(3) modify any of the provisions of this Section or
Section 513 or Section 1010, except to increase any such percentage
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, provided, however, that
this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 1010 or the
deletion of this provision, in accordance with the requirements of
Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely 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.
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.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 601)
shall be fully protected in relying upon, an Opinion of Counsel of
the Company stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. 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, subject to Section 902, every Holder of
Securities theretofore or thereafter authenticated and delivered
hereunder 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 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 Company or the Trustee shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee
and the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees that it will duly and
punctually pay the principal of (and premium or Make-Whole Amount,
if any) and interest on the Securities and the Redemption Price and
the Change of Control Purchase Price, if any, each in accordance
with the terms of the Securities and this Indenture.
To the extent permitted by applicable law, the Company shall
pay interest on overdue amounts at the rate set forth in paragraph
1 of the Securities, and it shall pay interest on overdue interest
at the same rate compounded semi-annually (to the extent that the
payment of such interest shall be legally enforceable), which
interest on overdue interest shall accrue from the date such
amounts became overdue.
SECTION 1002. Maintenance of Office or Agency.
The Company will 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 may be surrendered for registration of transfer or
exchange, where Securities may be surrendered for conversion or
purchase pursuant to Article Fourteen and where notices and demands
to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company
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, and the
Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more
series may be presented or surrendered for any or all 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 Company of its obligation to maintain an office or
agency in each Place of Payment for such purposes. The Company
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.
SECTION 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, it will, on or before
each due date of the principal of (and premium or Make-Whole
Amount, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium
or Make-Whole Amount, if any) or interest 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 Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the
principal of (and premium or Make-Whole Amount, if any) or interest
on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium or Make-Whole Amount,
if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium
or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure
so to act.
The Company 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 the
principal of (and premium or Make-Whole Amount, if any) or interest
on Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the making of
any 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 Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company 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 Company 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 money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company in trust for the payment of the principal
of (and premium or Make-Whole Amount, if any) or interest on any
Security of any series and remaining unclaimed for two years after
such principal (and premium or Make-Whole Amount, if any) or
interest has become due and payable shall be paid to the Company on
Company Request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all
liability of the Company 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 Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day
and of general circulation in New York, New York, 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 Company.
SECTION 1004. Statements of Officers of Company as to Default.
(a) The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company ending after
the date hereof (but no later than the time of filing of the annual
report of the Company with the Trustee pursuant to Section 704), an
Officers' Certificate, stating whether or not to the best knowledge
of the signers thereof the Company is in compliance with all
conditions and covenants hereunder, without regard to any period of
grace or requirement of notice provided hereunder. If the Company
shall be in default, specifying all such defaults and the nature
and status thereof of which they may have knowledge. The Officers'
Certificate need not comply with Section 102 hereof.
(b) The Company shall file with the Trustee written
notice of the occurrence of any default or Event of Default within
five (5) Business Days of its becoming aware of any such default or
Event of Default.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and
effect its existence, rights (charter and statutory) and
franchises; provided, however, that the Company shall not be
required to preserve any such right or franchise if its Board of
Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties material to 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 Company, 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
Company from discontinuing the operation or maintenance of any of
such properties if such discontinuance is, in the judgment of the
Company, desirable in the conduct of its business or the business
of any Subsidiary and not disadvantageous in any material respect
to the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges (including withholding taxes
and any penalties, interest and additions to taxes) levied or
imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all
material lawful claims for labor, materials and supplies which, if
unpaid, might by law become a lien upon the property of the Company
or any Subsidiary, in each case material to the Company and its
Subsidiaries taken as a whole; provided, however, that the Company
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 and for which disputed amounts adequate
reserves have been made.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in Article 10,
inclusive, with respect to the Securities of any series, if before
the time for such compliance the Holders of at least a majority (or
such greater amount as may be specified in any such term, provision
or condition) in principal amount of the Outstanding Securities of
such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in
full force and effect.
SECTION 1009. Further Instruments and Acts.
Upon reasonable request of the Trustee, the Company will
execute and deliver such further instruments and perform such
further acts as may be reasonably necessary or proper to carry out
more effectively the purposes of this Indenture, including, but not
limited to, any reporting requirements relating to original issue
discount for purposes of federal income taxation.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
The Securities of any series that are convertible into Shares
of Common Stock will be subject to redemption in whole or from time
to time in part, at any time for certain reasons intended to
protect the Company's status as a REIT.
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 Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 30 days prior
to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities to
be redeemed and, if applicable, of the tenor of the Securities 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
Company 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 are to be
redeemed, (unless all of the Securities of such series and of a
specified tenor 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 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 or any integral multiple
thereof.
If less than all of the Securities of such series and of a
specified tenor 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 and specified tenor not previously called for
redemption in accordance with the preceding sentence.
If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to
the portion of the Security so selected, the converted portion of
such Security shall be deemed (so far as may be) to be the portion
selected for redemption. Securities which have been converted
during a selection of Securities to be redeemed shall be treated by
the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each
Security Registrar 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 Securities redeemed or
to be redeemed only in part, to the portion of the principal amount
of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be redeemed
and that interest thereon will cease to accrue on and after said
date,
(5) the conversion price, the date on which the right to
convert the principal of the Securities to be redeemed will
terminate and the place or places where such Securities may be
surrendered for conversion, and
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
(7) that the redemption is for a sinking fund, if such
is the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of
the Company and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to
be redeemed on that date other than any Securities called for
redemption on that date which have been converted prior to the date
of such deposit.
If any Security called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so
segregated and held in trust for the redemption of such Security
shall (subject to any right of the Holder of such Security or any
Predecessor Security to receive interest as provided in the last
paragraph of Section 307) be paid to the Company upon Company
Request or, if then held by the Company, shall be discharged from
such trust.
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, and from
and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided,
however, that unless otherwise specified as contemplated by Section
301, installments of interest 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 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 shall be
surrendered at an office or agency of the Company designated for
that purpose pursuant to Section 1002 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities 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.
SECTION 1108. Conversion Arrangements on Call for Redemption.
Notwithstanding anything to the contrary contained in this
Indenture, in connection with any redemption of Securities, the
Company, by an agreement with one or more investment bankers or
other purchasers, may arrange for such purchasers to purchase all
Securities called for redemption (the "Called Securities") which
are either (i) surrendered for redemption or (ii) not duly
surrendered for redemption or conversion prior to the close of
business on the Redemption Date, and to convert the same into
shares of Common Stock, by the purchasers' depositing with the
Trustee (acting as Paying Agent with respect to the deposit of such
amount and as conversion agent with respect to the conversion of
such Called Securities), in trust for the Holders of the Called
Securities, on or prior to the Redemption Date in the manner agreed
to by the Company and such purchasers, an amount sufficient to pay
the Redemption Price, payable by the Company on redemption of such
Called Securities. In connection with any such arrangement for
purchase and conversion, the Trustee as Paying Agent shall pay on
or after the Redemption Date such amounts so deposited by the
purchasers in exchange for Called Securities surrendered for
redemption prior to the close of business on the Redemption Date
and for all Called Securities surrendered after such Redemption
Date. Notwithstanding anything to the contrary contained in this
Article Eleven, the obligation of the Company to pay the Redemption
Price of such Called Securities shall be satisfied and discharged
to the extent such amount is so paid by such purchasers, provided,
however, that nothing in this Section 1109 shall in any way relieve
the Company of the obligation to pay such Redemption Price on all
Called Securities to the extent such amount is not so paid by said
purchasers. For all purposes of this Indenture, any Called
Securities surrendered by the Holders for redemption, and any
Called Securities not duly surrendered for redemption or conversion
prior to the close of business on the Redemption Date, shall be
deemed acquired by such purchasers from such Holders and
surrendered by such purchasers for conversion and shall in all
respects be deemed to have been converted, all as of immediately
prior to the close of business on the Redemption Date, subject to
the deposit by the purchasers of the above amount as aforesaid.
Nothing in this Section 1109 shall in any way limit the right of
any Holder of a Security to convert his Security pursuant to the
terms of this Indenture any time prior to the close of business on
the fifth Business Day preceding the Redemption Date.
ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 1201. Conversion Privilege and Conversion Price.
Securities of any series which are convertible into Common
Stock of the Company shall be convertible 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.
Subject to and upon compliance with the provisions of this
Article, at the option of the Holder thereof, any Security or any
portion of the principal amount thereof which is $1,000 or an
integral multiple of $1,000 may be converted at the principal
amount thereof, or of such portion thereof, into fully paid and
nonassessable shares (calculated as to each conversion to the
nearest 1/100 of a share) of Common Stock of the Company, at the
conversion price, determined as hereinafter provided, in effect at
the time of conversion. Such conversion right shall expire at the
close of business on the date specified in the description relating
to the specific series of the Securities. In case a Security or
portion thereof is called for redemption, such conversion right in
respect of the Security or portion so called shall expire at the
close of business on the fifth Business Day preceding the
Redemption Date, unless the Company defaults in making the payment
due upon redemption.
The price at which shares of Common Stock shall be delivered
upon conversion (herein called the "conversion price") shall be the
price specified in relation to Securities of such series pursuant
to Section 301. The conversion price shall be adjusted in certain
instances as provided in this Article.
In case the Company shall, by dividend or otherwise, declare
or make a distribution on its Common Stock referred to in paragraph
(4) or (5) of Section 1204, the Holder of each Security, upon the
conversion thereof pursuant to this Article subsequent to the close
of business on the date fixed for the determination of stockholders
entitled to receive such distribution and prior to the
effectiveness of the conversion price adjustment in respect of such
distribution pursuant to paragraph (4) or (5) of Section 1204,
shall also be entitled to receive for each share of Common Stock
into which such Security is converted, the portion of the evidences
of indebtedness, shares of capital stock, cash and assets so
distributed applicable to one share of Common Stock, provided that
at the election of the Company (whose election shall be evidenced
by a Board Resolution) with respect to all Holders so converting,
the Company may, in lieu of distributing to such Holder any portion
of such distribution not consisting of cash or securities of the
Company, pay such Holder an amount in cash equal to the fair market
value thereof (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution). If any conversion of a Security described in the
immediately preceding sentence occurs prior to the payment date for
a distribution to holders of Common Stock which the Holder of the
Security so converted is entitled to receive in accordance with the
immediately preceding sentence, the Company may elect (such
election to be evidenced by a Board Resolution) to distribute to
such Holder a due bill for the evidences of indebtedness, shares of
capital stock, cash or assets to which such Holder is so entitled,
provided that such due bill (i) meets any applicable requirements
of the principal national securities exchange or other market on
which the Common Stock is then traded and (ii) requires payment or
delivery of such evidences of indebtedness, shares of capital
stock, cash or assets no later than the date of payment or delivery
thereof to holders of Common Stock receiving such distribution.
SECTION 1202. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of
any Security to be converted shall surrender such Security, duly
endorsed or assigned to the Company or in blank, at any office or
agency maintained by the Company pursuant to Section 1002,
accompanied by written notice to the Company (which shall be
substantially in for the form set forth in Section 203) at such
office or agency that the Holder elects to convert such Security
or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted. Securities
surrendered for conversion during the period from the close of
business on any Regular Record Date next preceding any Interest
Payment Date to the opening of business on such Interest Payment
Date shall (except for Securities whose Maturity is prior to such
Interest Payment Date and Securities called for redemption on a
Redemption Date within such period) be accompanied by payment in
New York Clearing House funds or other funds acceptable to the
Company of an amount equal to the interest payable on such Interest
Payment Date on the principal amount of Securities being
surrendered for conversion. Subject to the provisions of Section
307 relating to the payment of Defaulted Interest by the Company,
the interest payment with respect to a Security called for
redemption on a Redemption Date during the period from the close of
business on any Regular Record Date next preceding any Interest
Payment Date to the opening of business on such Interest Payment
Date shall be payable on such Interest Payment Date to the Holder
of such Security at the close of business on such Regular Record
Date notwithstanding the conversion of such Security after such
Regular Record Date and prior to such Interest Payment Date, and
the Holder converting such Security need not include a payment of
such interest payment amount upon surrender of such Security for
conversion. Except as provided in the preceding sentence and
subject to the last paragraph of Section 307, no payment or
adjustment shall be made upon any conversion on account of any
interest accrued on the Securities surrendered for conversion or on
account of any dividends on the Common Stock issued upon
conversion.
Securities shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such
Securities for conversion in accordance with the foregoing
provisions, and at such time the rights of the Holders of such
Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall
be treated for all purposes as the record holder or holders of such
Common Stock at such time. As promptly as practicable on or after
the conversion date, the Company shall issue and shall deliver at
such office or agency a certificate or certificates for the number
of full shares of Common Stock issuable upon conversion, together
with payment in lieu of any fraction of a share, as provided in
Section 1203.
In the case of any Security which is converted in part only,
upon such conversion the Company shall execute and the Trustee
shall authenticate and deliver to the Holder thereof, at the
expense of the Company, a new Security or Securities, of authorized
denominations in aggregate principal amount equal to the
unconverted portion of the principal amount of such Security.
The Company's delivery to the Holder of the fixed number of
shares of the Common Stock of the Company (and any cash in lieu of
any fractional share of Common Stock) into which the Security is
convertible shall be deemed to satisfy the Company's obligation to
pay the principal amount of the Security and all accrued interest
and original issue discount that has not previously been paid. The
Common Stock of the Company so delivered shall be treated as issued
first in payment of accrued interest and original issue discount
and then in payment of principal. Thus, accrued interest and
original issue discount shall be treated as paid rather than
canceled, extinguished or forfeited.
The Holders of Securities of any series may not convert any
Security, and such Security shall not be convertible by any Holder,
if as a result of such conversion any person would then be deemed
to beneficially own, directly or indirectly, 9.8% or more of the
then outstanding shares of Common Stock.
SECTION 1203. Fractions of Shares.
No fractional shares of Common Stock shall be issued upon
conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal
amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock which
would otherwise be issuable upon conversion of any Security or
Securities (or specified portions thereof), the Company shall pay
a cash adjustment (rounded to the nearest cent) in respect of such
fraction in an amount equal to the same fraction of the Closing
Price per share of the Common Stock (consistent with Section
1204(2) below) at the close of business on the day of conversion
(or, if such day is not a Trading Day, on the Trading Day
immediately preceding such day).
SECTION 1204. Adjustment of Conversion Price.
(1) In case the Company shall pay or make a dividend or
other distribution on its Common Stock exclusively in Common Stock
or shall pay or make a dividend or other distribution on any other
class of capital stock of the Company which dividend or
distribution includes Common Stock, the conversion price in effect
at the opening of business on the day following the date fixed for
the determination of stockholders entitled to receive such dividend
or other distribution shall be reduced by multiplying such
conversion price by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution,
such reduction to become effective immediately after the opening of
business on the day following the date fixed for such
determination. For the purposes of this paragraph (1), the number
of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company shall not pay any
dividend or make any distribution on shares of Common Stock held in
the treasury of the Company.
(2) In case the Company shall pay or make a dividend or
other distribution on its Common Stock consisting exclusively of,
or shall otherwise issue to all holders of its Common Stock, rights
or warrants entitling the holders thereof to subscribe for or
purchase shares of Common Stock at a price per share less than the
current market price per share (determined as provided in paragraph
(6) of this Section) of the Common Stock on the date fixed for the
determination of stockholders entitled to receive such rights or
warrants, the conversion price in effect at the opening of business
on the day following the date fixed for such determination shall be
reduced by multiplying such conversion price by a fraction of which
the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase
at such current market price and the denominator shall be the
number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number
of shares of Common Stock so offered for subscription or purchase,
such reduction to become effective immediately after the opening of
business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number
of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company shall not issue
any rights or warrants in respect of shares of Common Stock held in
the treasury of the Company. If at the end of the period during
which such rights or warrants are convertible into Common Stock,
not all such rights or warrants have been converted into Common
Stock, the adjustment shall be immediately readjusted (on a
prospective basis for any Securities not theretofore converted) to
what it would have been based on the number of additional shares of
Common Stock actually issued.
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
conversion price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective
shall be proportionately reduced, and, conversely, in case
outstanding shares of Common Stock shall each be combined into a
smaller number of shares of Common Stock, the conversion price in
effect at the opening of business on the day following the day upon
which such combination becomes effective shall be proportionately
increased, such reduction or increase, as the case may be, to
become effective immediately after the opening of business on the
day following the day upon which such subdivision or combination
becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness, shares of any class of capital stock, cash or assets
(including securities, but excluding (x) any rights or warrants
referred to in paragraph (2) of this Section, (y) any dividend or
distribution paid exclusively in cash out of the retained earnings
of the Company and (z) any dividend or distribution referred to in
paragraph (1) of this Section), the conversion price shall be
adjusted so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to the
close of business on the date fixed for the determination of
stockholders entitled to receive such distribution by a fraction of
which the numerator shall be the current market price per share
(determined as provided in paragraph (6) of this Section) of the
Common Stock on the date fixed for such determination less the then
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution filed with the Trustee) of the portion of the assets or
evidences of indebtedness so distributed applicable to one share of
Common Stock and the denominator shall all be such current market
price per share of the Common Stock, such adjustment to become
effective immediately prior to the opening of business on the day
following the date fixed for the determination of stockholders
entitled to receive such distribution.
(5) The reclassification of Common Stock into securities
other than Common Stock (other than any reclassification upon a
consolidation or merger to which Section 1211 applies) shall be
deemed to involve (a) a distribution of such securities other than
Common Stock to all holders of Common Stock (and the effective date
of such reclassification shall be deemed to be "the date fixed for
the determination of stockholders entitled to receive such
distribution" and the "date fixed for such determination" within
the meaning of paragraph (4) of this Section), and (b) a
subdivision or combination, as the case may be, of the number of
shares of Common Stock outstanding immediately prior to such
reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such
subdivision becomes effective" or "the day upon which such
combination becomes effective," as the case may be, such "the day
upon which such subdivision or combination becomes effective"
within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs
(2) and (4) of this Section, the current market price per share of
Common Stock on any day shall be deemed to be the average of the
daily closing prices for the five consecutive trading days (i.e.,
Business Days on which the Common Stock is traded) selected by the
Board of Directors commencing not more than 20 trading days before,
and ending not later than, the earlier of the day in question and
the day before the "ex" date with respect to the issuance or
distribution requiring such computation. For this purpose, the
term "'ex' date," when used with respect to any issuance or
distribution, shall mean the first date on which the Common Stock
trades regular way on the applicable exchange or in the applicable
market without the right to receive such issuance or distribution.
The closing price for each day shall be the reported last sale
price regular way or, in case no such reported sale takes place on
such day, the average of the reported closing bid and asked prices
regular way, in either case on the New York Stock Exchange or, if
the Common Stock is not listed or admitted to trading on such
Exchange, on the principal national securities exchange on which
the Common Stock is listed or admitted to trading or, if not listed
or admitted to trading on any national securities exchange, on the
National Association of Securities Dealers Automated Quotations
National market or, if the Common Stock is not listed or admitted
to trading on any national securities exchange or quoted on such
National Market, the average of the closing bid and asked prices in
the over-the-counter market as furnished by any New York Stock
Exchange member firm selected from time to time by the Board of
Directors for that purpose.
(7) The Company may make such reductions in the
conversion price, in addition to those required by paragraphs (1),
(2), (3) and (4) of this Section, as it considers to be advisable
in order to avoid or diminish any income tax to any holders of
shares of Common Stock resulting from any dividend or distribution
of stock or issuance of rights or warrants to purchase or subscribe
for stock or from any event treated as such for income tax purposes
or for any other reasons. The Company shall have the power to
resolve any ambiguity or correct any error in this paragraph (7)
and its actions in so doing shall be final and conclusive.
(8) No adjustment in the conversion price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in the conversion price; provided, however,
that any adjustments which by reason of this paragraph (11) are not
required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under this Article
shall be made to the nearest cent or to the nearest 1/100 of a
share, as the case may be.
SECTION 1205. Notice of Adjustments of Conversion Price.
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion
price in accordance with Section 1204 and shall prepare a
certificate signed by the Treasurer of the Company setting forth
the adjusted conversion price and showing in reasonable detail the
facts upon which such adjustment is based, and such certificate
shall forthwith be filed (with a copy to the Trustee) at each
office or agency maintained for the purpose of conversion of
Securities pursuant to Section 1002; and
(b) a notice stating that the conversion price has been
adjusted and setting forth the adjusted conversion price shall
forthwith be required, and as soon as practicable after it is
required, such notice shall be mailed by the Company to all Holders
at their last addresses as they shall appear in the Security
Register.
SECTION 1206. Notice of Certain Corporate Activities.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash
out of its earned surplus; or
(b) the Company shall authorize the granting to the
holders of its Common Stock of rights or warrants to subscribe for
or purchase any shares of capital stock of any class or of any
other rights; or
(c) of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its outstanding
shares of Common Stock), or of any consolidation, merger or share
exchange to which the Company is a party and for which approval of
any stockholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company;
or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant to
Section 1002, and shall cause to be mailed to all Holders at their
last addresses as they shall appear in the Security Register, at
least 20 days (or 10 days in any case specified in clause (a) and
(b) above) prior to the applicable record, effective or expiration
date hereinafter specified, a notice stating (x) the date on which
a record is to be taken for the purpose of such dividend,
distribution or granting of rights, warrants or options, or, if a
record is not to be taken, the date as of which the holders of
Common Stock of record to be entitled to such dividend,
distribution, rights, warrants or options are to be determined, or
(y) the date on which such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up is expected
to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up. Neither
the failure to give such notice nor any defect therein shall affect
the legality or validity of the proceedings described in clauses
(a) through (d) of this Section 1406. If at the time the Trustee
shall not be the conversion agent, a copy of such notice shall also
forthwith be filed by the Company with the Trustee.
SECTION 1207. Company to Reserve Common Stock.
The Company shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued
Common Stock, for the purpose of effecting the conversion of
Securities, the full number of shares of Common Stock then issuable
upon the conversion of all outstanding Securities.
SECTION 1208. Taxes on Conversions.
The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on
conversion of Securities pursuant hereto. The Company shall not,
however, be required to pay any tax which may be payable in respect
of any transfer involved in the issue and delivery of shares of
Common Stock in a name other than that of the Holder of the
Security or Securities to be converted, and no such issue or
delivery shall be made unless and until the Person requesting such
issue has paid to the Company or Securities Registrar the amount of
any such tax, or has established to the satisfaction of the Company
or Securities Registrar that such tax has been paid.
SECTION 1209. Covenant as to Common Stock.
The Company covenants that all shares of Common Stock which
may be issued upon conversion of Securities will upon issue be
fully paid and nonassessable and, except as provided in Section
1208, the Company will pay all taxes, liens and charges with
respect to the issue thereof.
The Company will endeavor promptly to comply with all federal
and state securities laws regulating the offer and delivery of
shares of Common Stock upon conversion of Securities, if any, and
will list or cause to have quoted such shares of Common Stock on
each national securities exchange or in the over-the-counter market
or such other market on which the Common Stock is then listed or
quoted.
SECTION 1210. Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to
the Trustee to be canceled by or at the direction of the Trustee,
which shall dispose of the same as provided in Section 309.
SECTION 1211. Provisions in Case of Consolidation, Merger or
Sale of Assets.
In case of any consolidation of the Company with, or merger
of the Company into, any other Person, any merger of another Person
into the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company) or any sale,
transfer or lease of the Company's properties or assets
substantially as an entirety, the Person formed by such
consolidation or resulting from such merger or which acquires such
assets, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each
Security then outstanding and such Person shall have the right
thereafter, during the period such Security shall be convertible as
specified in Section 1201, to convert such Security only into the
kind and amount of securities, cash and other property receivable,
if any, upon such consolidation, merger, sale, transfer or lease by
a holder of the number of shares of Common Stock of the Company
into which such Security might have been converted immediately
prior to such consolidation, merger, sale, transfer or lease,
assuming such holder of Common Stock of the Company (i) is not a
Person with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such
sale, transfer or lease was made, as the case may be ("Constituent
Person"), or an Affiliate of a Constituent Person and (ii) failed
to exercise his rights of election, if any, as to the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, sale, transfer or lease (provided that if
the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale, transfer or lease
is not the same for each share of Common Stock of the Company held
immediately prior to such consolidation, merger, sale, transfer or
lease by other than a Constituent Person or an Affiliate thereof
and in respect of which such rights of election shall not have been
exercised ("non-electing share"), then for the purpose of this
Section the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale, transfer or lease
by each non-electing share shall be deemed to be the kind and
amount so receivable per share by a plurality of the non-electing
shares). Such supplemental indenture shall provide for adjustments
which, for events subsequent to the effective date of such
supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The
above provisions of this Section shall similarly apply to
successive consolidations, mergers, sales, transfers and leases.
SECTION 1212. Trustee Adjustment Disclaimer.
Neither the Trustee nor any conversion agent shall at any
time be under any duty or responsibility to any Holder of
Securities to determine whether any fact exists which may require
any adjustment of the conversion price, or with respect to the
nature or extent of any such adjustment when made, or with respect
to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee
nor any conversion agent shall be accountable with respect to the
registration, validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may
at any time be issued or delivered upon the conversion of any
Security; and neither the Trustee nor any conversion agent makes
any representation with respect thereto. Neither the Trustee nor
any conversion agent shall be responsible for any failure of the
Company to issue or transfer or deliver any Common Stock or stock
certificates or other securities or property or to make any cash
payment upon the surrender of any Security for the purpose of
conversion or to comply with any of the covenants of the Company
contained in this Article Twelve.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Agreement to Subordinate by Company.
Notwithstanding anything in this Indenture to the contrary
(other than the last paragraph of Section 1405), the Company, for
itself, its successors and assigns, covenants and agrees, and each
Holder of Securities, by his acceptance thereof, likewise covenants
and agrees, that payment by the Company of the principal of (and
premium or Make-Whole Amount, if any) and interest on each and all
of the Securities is hereby expressly subordinated, to the extent
and in the manner hereinafter set forth, in right of payment to the
prior payment in full of all Senior Indebtedness.
SECTION 1302. Distribution on Dissolution, Liquidation and
Reorganization.
Upon any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the
Company, whether in bankruptcy, insolvency, reorganization or
receivership proceedings or upon an assignment for the benefit of
creditors or any other marshalling of the assets and liabilities of
the Company or otherwise (subject to the power of a court of
competent jurisdiction to make other equitable provision reflecting
the rights conferred in this Indenture upon the Senior Indebtedness
and the holders thereof, with respect to the Securities and the
holders thereof, by a lawful plan of reorganization under
applicable bankruptcy law),
(a) the holders of all Senior Indebtedness shall be
entitled to receive payment in full of the principal thereof,
premium, if any, and the interest due thereon before the Holders of
the Securities are entitled to receive any payment upon the
principal of or premium, if any, or interest on indebtedness
evidenced by the Securities; and
(b) any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities,
to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article Thirteen shall
be paid by the liquidating trustee or agent or other person making
such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the
holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of the principal of,
premium, if any, and interest on the Senior Indebtedness held or
represented by each, to the extent necessary to make payment in
full of all Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of
such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing,
any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, shall be
received by the Holders of the Securities or by the Trustee before
all Senior Indebtedness is paid in full, such payment or
distribution shall be paid over to the holders of such Senior
Indebtedness, or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued,
ratably as aforesaid, for application to the payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent
payment or distribution to the holders of such Senior Indebtedness.
For purposes of this Article only, the words "cash, property
or securities" shall not be deemed to include shares of stock of
the Company as reorganized or readjusted, or securities of the
Company or any other corporation provided for by a plan of
reorganization or readjustment which are subordinated in right of
payment to all Senior Indebtedness which may at the time be
outstanding to substantially the same extent as, or to a greater
extent then, the Securities are so subordinated as provided in this
Article. The consolidation of the Company with, or the merger of
the Company into, another Person or the liquidation or dissolution
of the Company following the conveyance or transfer of its
properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article Eight
shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the
purposes of this Section if the Person formed by such consolidation
or into which the Company is merged or which acquires by conveyance
or transfer such properties and assets substantially as an
entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article Eight.
SECTION 1303. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness,
the Holders of the Securities shall be subrogated to the rights of
the holders of Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company,
applicable to Senior Indebtedness until the principal of, premium,
if any, and interest on the Securities shall be paid in full and no
such payments or distributions to the Holders of the Securities of
cash, property or securities otherwise distributable to the holders
of Senior Indebtedness shall, as between the Company, its creditors
other than the holders of Senior Indebtedness and the Holders of
the Securities be deemed to be a payment by the Company to or on
account of the Securities. It is understood that the provisions of
this Article Thirteen are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on
the one hand, and the holders of Senior Indebtedness on the other
hand. Nothing contained in this Article Thirteen or elsewhere in
this Indenture or in the Securities is intended to or shall impair,
as between the Company, its creditors other than the holders of
Senior Indebtedness and the Holders of the Securities, as the case
may be, the obligations of the Company, which are unconditional and
absolute, to pay to the Holders of the Securities the principal of,
premium, if any, and interest on the Securities as and when the
same shall become due and payable in accordance with their terms,
or to affect the relative rights of the Holders of the Securities
and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or in the Securities
prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this
Article Thirteen of the holders of Senior Indebtedness in respect
of cash, property or securities of the Company received upon the
exercise of any such remedy. Upon any payment or distribution of
assets of the Company referred to in this Article Thirteen, the
Trustee, subject to the provisions of Section 601, shall be
entitled to rely upon a certificate of the liquidating trustee or
agent or other person making any distribution to the Trustee for
the purpose of ascertaining the persons entitled to participate in
such distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Thirteen.
SECTION 1304. Trustee Not Fiduciary for Holders of Senior
Indebtedness.
The Trustee, however, shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness. The Trustee
shall not be liable to any such holder if it shall pay over or
distribute to or on behalf of Holders of Securities or the Company
moneys or assets to which any holder of Senior Indebtedness shall
be entitled by virtue of this Article Thirteen.
If the Trustee or any Holder of Securities does not file a
proper claim or proof of debt in the form required in any
proceeding referred to above prior to 30 days before the expiration
of the time to file such claim in such proceeding, then the holder
of any Senior Indebtedness is hereby authorized, and has the right,
to file an appropriate claim or claims for or on behalf of such
Holder of Securities.
SECTION 1305. Prior Payment to Senior Indebtedness Upon
Acceleration of Securities.
In the event that any Securities are declared due and payable
before their Stated Maturity, then and in such event the holders of
Senior Indebtedness outstanding at the time such Securities so
become due and payable shall be entitled to receive payment in full
of all amounts due or to become due on or in respect of such Senior
Indebtedness, or provision shall be made for such payment in money
or money's worth, before the Holders of the Securities are entitled
to receive any payment by the Company on account of the principal
of (or premium or Make-Whole Amount, if any) or interest on the
Securities or on account of the purchase or other acquisition of
Securities; provided, however, that nothing in this Section shall
prevent the satisfaction of any sinking fund payment in accordance
with Article Fifteen by delivering and crediting pursuant to
Section 1502 Securities which have been acquired (upon redemption
or otherwise) prior to such default or which have been converted
pursuant to Article Twelve.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, and if such
fact shall, at or prior to the time of such payment, have been
made known to the Trustee or, as the case may be, such Holder, then
and in such event such payment shall be paid over and delivered
forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 1302 would be applicable.
SECTION 1306. No Payment in Event of Default on Senior
Indebtedness.
(a) In the event and during the continuation of any
default in the payment of principal of (or premium or Make-Whole
Amount, if any) or interest on any Senior Indebtedness beyond any
applicable grace period with respect thereto, or in the event that
any event of default with respect to any Senior Indebtedness shall
have occurred and be continuing and shall have resulted in such
Senior Indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and
payable, unless and until such event of default shall have been
cured or waived or shall have ceased to exist and such acceleration
shall have been rescinded or annulled, or (b) in the event any
judicial proceeding shall be pending with respect to any such
default in payment or event of default, then no payment shall be
made by the Company on account of principal of (or premium or Make-
Whole Amount, if any) or interest on the Securities or on account
of the purchase or other acquisition of Securities; provided,
however, that nothing in this Section shall prevent the
satisfaction of any sinking fund payment in accordance with Article
Fifteen by delivering and crediting pursuant to Section 1502
Securities which have been acquired (upon redemption or otherwise)
prior to such default or which have been converted pursuant to
Article Twelve.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section, and if such
fact shall, at or prior to the time of such payment, have been made
known to the Trustee or, as the case may be, such Holder, then and
in such event such payment shall be paid over and delivered
forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 1302 would be applied.
SECTION 1307. Payments Permitted If No Default.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Securities shall prevent the Company, at
any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshalling of assets and liabilities
of the Company referred to in Section 1302 or under the conditions
described in Section 1305 or 1306, from making payments at any time
of principal of (and premium, or Make-Whole Amount, if any) or
interest on securities.
SECTION 1308. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely
for the purpose of defining the relative rights of the Holders of
the Securities on the one hand and the holders of Senior
Indebtedness on the other hand. Nothing contained in this Article
or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities,
the obligation of the Company, which is absolute and unconditional
(and which, subject to the rights under this Article of the holders
of Senior Indebtedness, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the
Securities the principal of (and premium or Make-Whole Amount, if
any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of
the Securities and creditors of the Company other than the holders
of Senior Indebtedness; or (c) prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior
Indebtedness to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 1309. Authorization to Trustee to Effect Subordination.
Each Holder of Securities by his acceptance thereof
authorizes and directs the Trustee in his behalf to take such
action as may be necessary or appropriate to effectuate the
subordination as provided in this Article Thirteen and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 1310. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided such at
any time in any way be prejudiced or impaired by any act or failure
to act on the part of the Company or by any act or failure to act,
in good faith, by any such holder, or by any non-compliance by the
Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee
or the Holders of the Securities, without incurring responsibility
to the Holders of the Securities and without impairing or releasing
the subordination provided in this Article of the obligations
hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Indebtedness, or otherwise amend or
supplement in any manner Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of Senior Indebtedness, and (iv)
exercise or refrain from exercising any rights against the Company
and any other Person.
SECTION 1311. Notices to Trustee.
Notwithstanding the provisions of this Article or any other
provisions of this Indenture, neither the Trustee nor any Paying
Agent (other than the Company) shall be charged with knowledge of
the existence of any Senior Indebtedness or of any event which
would prohibit the making of any payment of moneys to or by the
Trustee or such Paying Agent, unless and until the Trustee or such
Paying Agent shall have received (in the case of the Trustee, at
its Corporate Trust Office) written notice thereof from the Company
or from the holder of any Senior Indebtedness or from the trustee
for any such holder, together with proof satisfactory to the
Trustee of such holding of Senior Indebtedness or of the authority
of such trustee; provided, however, that if at least two Business
Days prior to the date upon which by the terms hereof any such
moneys may become payable for any purpose (including, without
limitation, the payment of either the principal of, premium or
Make-Whole Amount, if any, or interest on any Security) the Trustee
shall not have received with respect to any such moneys the notice
provided for in this Section 1311, then, anything herein contained
to the contrary notwithstanding, the Trustee, subject to the
provisions of 601, shall have the full power and authority to
receive such moneys and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the
contrary, which may be received by it on or after such two Business
Days prior to such date. Subject to the provisions of Section 601,
the Trustee shall be entitled to rely on the delivery to it of a
written notice by a person representing himself to be a holder of
Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such a notice has been given by a holder of Senior
Indebtedness or a trustee on behalf of any such holder. In the
event that the Trustee determines in good faith that further
evidence is required with respect to the right of any person as a
holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Thirteen, the Trustee may
request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, the extent to which such person is entitled to
participate in such payment or distribution and any other facts
pertinent to the rights of such person under this Article Thirteen
and, if such evidence is not furnished, the Trustee may defer any
payment to such person pending judicial determination as to the
right of such person to receive such payment.
SECTION 1312. Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in
this Article Thirteen in respect of any Senior Indebtedness at any
time held by it to the same extent as any other holder of Senior
Indebtedness and nothing in Section 613 or elsewhere in this
Indenture shall be construed to deprive the Trustee of any of its
rights as such holder.
SECTION 1313. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions
of Section 601, and the Holders of the Securities shall be entitled
to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment
or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the
Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article.
SECTION 1314. Rights of Trustee as Holder of Senior Indebted-
ness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness, and nothing in
this Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 607.
SECTION 1315. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting
hereunder, the term "Trustee" as used in this Article shall in such
case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee;
provided, however, that Section 1315 shall not apply to the Company
or any Affiliate of the Company if it or such Affiliate acts as
Paying Agent.
SECTION 1316. Certain Conversions Deemed Payment.
For the purposes of this Article only, (1) the issuance and
delivery of junior securities upon conversion of Securities in
accordance with Article Twelve shall not be deemed to constitute a
payment or distribution on account of the principal of or premium
or interest on Securities or on account of the purchase or other
acquisition of Securities, and (2) the payment, issuance or
delivery of cash, property or securities (other than junior
securities) upon conversion of a Security shall be deemed to
constitute payment on account of the principal of such Security.
For the purposes of this Section, the term "junior securities"
means (a) shares of any stock of any class of the Company and (b)
securities of the Company which are subordinated in right of
payment to all Senior Indebtedness which may be outstanding at the
time of issuance or delivery of such securities to substantially
the same extent as, or to a greater extent than, the Securities are
so subordinated as provided in this Article. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors
other than holders of Senior Indebtedness and the Holders of the
Securities, the right, which is absolute and unconditional, of the
Holder of any Security to convert such Security in accordance with
Article Fourteen.
SECTION 1317. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary,
payments from moneys or the proceeds of U.S. Government Obligations
held in trust under Article Thirteen by the Trustee for the payment
of principal of, premium, if any, and interest on the Securities
from the date of deposit (if made in compliance with this
Indenture) shall not be subordinated to the prior payment of any
Senior Indebtedness or subject to the restraints set forth in this
Article, and none of the Security holders shall be obligated to pay
over any such amount to the Company or any holder of Senior
Indebtedness of the Company or any other creditor of the Company.
SECTION 1318. Modification of Terms of Senior Indebtedness.
Any renewal or extension of the time of payment of any Senior
Indebtedness or the exercise by the holders of Senior Indebtedness
of any of their rights under any instrument creating or evidencing
Senior Indebtedness, including without limitation the waiver of
defaults thereunder, may be made or done all without notice to or
assent from the Holders of the Securities or the Trustee.
No compromise, alteration, amendment, modification,
extension, renewal or other change of, or waiver, consent or other
action in respect of, any liability or obligation under or in
respect of, or of any of the terms, covenants or conditions of any
indenture or other instrument under which any Senior Indebtedness
or of such Senior Indebtedness, whether or not such release is in
accordance with the provisions of any applicable document, shall in
any way alter or affect any of the provisions of this Article
Thirteen or of the Securities relating to the subordination
thereof.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance.
The Company may at its option by Board Resolution, at any
time, elect to have either Section 1402 or Section 1403 applied to
the Outstanding Securities of any series designated pursuant to
Section 301 as being defeasible pursuant to this Article Fourteen
(hereinafter called a "Defeasible Series"), upon compliance with
the conditions set forth below in this Article Fourteen; provided
that Section 1502 shall not apply to any series of Securities that
is convertible into Common Stock as provided in Article Twelve or
convertible into or exchangeable for any other securities pursuant
to Section 301(18).
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section
1401 to have this Section 1402 applied to the Outstanding
Securities of any Defeasible Series and subject to the proviso of
Section 1401, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities of
such series (including the provisions of Article Fourteen hereof)
on the date the conditions set forth in Section 1404 are satisfied
(hereinafter, "Defeasance"). For this purpose, such Defeasance
means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Outstanding Securities
of such series and to have satisfied all its other obligations
under such Securities of such series and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of
the Company, 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
Outstanding Securities of such series 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 on such Securities when
such payments are due, (B) the Company's obligations with respect
to such Securities under Sections 304, 305, 306, 1002 and 1003, (C)
the rights, powers, trusts, duties and immunities of the Trustee
hereunder, (D) the Company's obligations under Article Twelve and
(E) this Article Fourteen.
Subject to compliance with this Article Fourteen, the Company
may exercise its option under this Section 1402 applied to the
Outstanding Securities of any Defeasible Series notwithstanding the
prior exercise of the option provided in Section 1401 to have
Section 1403 applied to the outstanding Securities of such series.
SECTION 1403. Covenant Defeasance.
Upon the Company's exercise of the option provided in
Section 1403 to have this Section 1303 applied to the Outstanding
Securities of any Defeasible Series, (1) the Company shall be
released from its obligations under Sections 1006 through 1009,
inclusive, and Section 801(3), and any covenants provided pursuant
to Section 301(20), 901(2) or 901(7) for the benefit of the Holders
of such Securities and (2) the occurrence of any event specified in
Sections 501(3), 501(4) (with respect to any of Sections 1006
through 1009, inclusive, and any such covenant provided pursuant to
Section 301(20), 901(2) or 901(7) and Section 801(3), 501(5) and
501(8) shall be deemed not to be or result in an Event of Default
and (3) the provisions of Article Fifteen shall cause to be
effective, in each case with respect to the Outstanding Securities
of such series as provided in this Section on and after the date
the conditions set forth in Section 1404 are satisfied (hereinafter
called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation
set forth in any such Sections or Article whether directly or
indirectly by reason of any reference elsewhere herein to any such
Sections or Article or by reason of any reference in any such
Sections or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of
either Section 1402 or Section 1403 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609 who shall agree to
comply with the provisions of this Article Fifteen 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 outstanding Securities of
such series, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms and
without further reinvestment thereof will provide, not later than
one day before the due date of any payment, money in an amount, or
(C) a combination thereof in an aggregate amount, sufficient, 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, the
principal of and premium, if any, on and each installment of
interest on the Securities on the Stated Maturity of such principal
or installment of interest on the day on which such payments are
due and payable in accordance with the terms of this Indenture and
of such Securities. For this purpose, "U.S. Government Obligations"
means securities that are (x) direct obligations of the United
States of America for the payment of which its full faith and
credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States of America, 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 (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligation or a
specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the
holder of such 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
U.S. Government Obligation or the specific payment of principal of
or interest on the U.S. Government Obligation evidenced by such
depository receipt.
(2) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since
the date 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 the Outstanding Securities of such series will not
recognize income, gain or loss for federal income tax purposes as
a result of such deposit, Defeasance and discharge 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.
(3) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of the Outstanding Securities of
such series will not recognize 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
deposit and Covenant Defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities, if then
listed on any securities exchange, will not be delisted as a result
of such deposit, in the case of an election under Section 1402 or
1403.
(5) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default shall have
occurred and be continuing on the date of such deposit or, insofar
as subsection (6) are concerned, at any time during the period
ending on the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until
the expiration of such period).
(6) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest as defined in
Section 608 and for purposes of the Trust Indenture Act with
respect to any securities of the Company (assuming all Securities
are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under,
any other agreement or instrument to which the Company is a party
or by which it is bound.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to either the
Defeasance under Section 1402 or the Covenant Defeasance under
Section 1403 (as the case may be) have been complied with.
(9) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit to constitute, unless
it is qualified as or exempt from, a regulated investment company
under the Investment Company Act of 1940, as amended.
SECTION 1405. Deposited Money and U.S. Government Obligations to
be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (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 the Securities of
any Defeasible Series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities, of
all sums due and to become due thereon, in respect of principal
(and premium, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
Money so held in trust, to the extent allocated for the payment of
Securities, shall not be subject to the provisions of Article
Fourteen.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
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 the Outstanding Securities.
Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or U.S. Government
Obligations held by it as provided in Section 1404 with respect to
Securities of any Defeasible Series that, 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 hereof which would then be
required to be deposited to effect an equivalent Defeasance or
Covenant Defeasance with respect to the Securities of such series.
SECTION 1406. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money
in accordance with Section 1402 or 1403 by reason of any order or
judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture and the Securities shall
be revived and reinstated as though no deposit had occurred
pursuant to this Article Fourteen until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance
with Section 1402 or 1403; provided, however, that if the Company
makes any payment of principal of (or premium or Make-Whole Amount,
if any) or interest on any Security following the reinstatement of
its obligations, the Company shall be subrogated to the rights of
the Holders of such Securities to receive such payment from the
money held by the Trustee or Paying Agent.
This instrument 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 instrument.
SECTION 1407. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company 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 and of like tenor, 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 FIFTEEN
SINKING FUNDS
SECTION 1501. 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 Securities of any
series is herein referred to as an "optional sinking fund payment".
If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as
provided in Section 1502. 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 1502. Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption) and (2)
may apply as a credit Securities of a series which have been
converted pursuant to Article Fourteen or which have been redeemed
either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment
with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the
terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of
the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1503. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the
Trustee an Officers' Certificate specifying the amount of the next
ensuing 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 and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202 and will also deliver to the
Trustee any Securities to be so delivered. 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 Company 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.
This instrument 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 instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year
first above written.
HEALTH CARE REIT, INC.
By:_____________________________
Name:
Title:__________________________
Attest:
______________________________
Name:
Title:
as Trustee
By:____________________________
Name:
Title:_________________________
Attest:
______________________________
Name:
Title:
EXHIBIT 5.1
SHUMAKER, LOOP & KENDRICK
1000 Jackson Street
Toledo, Ohio 43624
419-321-1313
February 9, 1996
Bruce G. Thompson
Chairman of the Board
Health Care REIT, Inc.
One SeaGate, Suite 1950
Toledo, Ohio 43604
Re: Health Care REIT, Inc.
Registration Statement on Form S-3
SEC File No. 33-64877
Our File No. 37479
Dear Mr. Thompson:
We have acted as counsel to Health Care REIT, Inc. (the
"Company") in connection with the preparation and filing of its
Registration Statement on Form S-3 with the Securities and Exchange
Commission pursuant to the requirements of the Securities Act of
1933, as amended, for the registration of the Company's securities
at an aggregate initial public offering price not to exceed
$200,000,000, on terms to be determined at the time of sale (the
"Securities").
In connection with the following opinion, we have
examined and have relied upon such documents, records,
certificates, statements and instruments as we have deemed
necessary and appropriate to render the opinion herein set forth.
Based upon the foregoing, it is our opinion that the
Securities will be, when issued and sold pursuant to a Prospectus
Supplement, legally and validly issued and fully paid and
nonassessable, and in the case of debt securities will be binding
obligations of the Company.
The undersigned hereby consents to the filing of this
opinion as Exhibit 5.1 to the Registration Statement.
Very truly yours,
SHUMAKER, LOOP & KENDRICK
By: /S/ MARY ELLEN PISANELLI
------------------------------
Mary Ellen Pisanelli
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts"
in the Amendment No. 1 to the Registration Statement (Form S-3 No.
33-64877) and related Prospectus of Health Care REIT, Inc. for the
registration of Offered Securities not to exceed an initial public
offering price of $200,000,000 and to the incorporation by
reference therein of our report dated February 8, 1995, with
respect to the consolidated financial statements and schedule of
Health Care REIT, Inc. included in its Annual Report (Form 10-K)
for the year ended December 31, 1994, as amended and filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Toledo, Ohio
February 9, 1996
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, a
director of Health Care REIT, Inc. (the "Company"), a Delaware
corporation that contemplates filing a Registration Statement on
Form S-3 ("Form S-3") with the Securities and Exchange Commission
under the provisions of the Securities Act of 1933, as amended, for
the purpose of registering under such Act debt securities, shares
of preferred stock, $1.00 par value per share, shares of common
stock, $1.00 par value per share, and warrants (collectively
"Offered Securities"), hereby constitutes and appoints GEORGE L.
CHAPMAN and BRUCE DOUGLAS his true and lawful attorneys-in-fact and
agents, and each of them (with full power of substitution and
resubstitution), with full power to act without the others, his
true and lawful attorney-in-fact and agent, for him and in his
name, place and stead, in the capacity as director, to sign such
Form S-3 and any and all amendments and supplements, including
post-effective amendments thereto, and to file such Form S-3 and
each such amendment and supplement, including post-effective
amendments, so signed, with all exhibits thereto, and any and all
other documents in connection therewith, with the Securities and
Exchange Commission, any and all applications or other documents in
connection with the listing of the Company's Offered Securities on
the New York Stock Exchange and any and all documents required to
be filed with any state securities regulatory board or commission
pertaining to the Form S-3, hereby granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do
and perform any and all acts and things requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he might do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned hereunto sets his
hand this 9th day of February, 1996.
/S/ PIER C. BORRA
________________________________
Pier C. Borra
Director
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, the
Chairman of the Board and Principal Executive Officer of Health
Care REIT, Inc. (the "Company"), a Delaware corporation that
contemplates filing a Registration Statement on Form S-3 ("Form
S-3") with the Securities and Exchange Commission under the
provisions of the Securities Act of 1933, as amended, for the
purpose of registering under such Act debt securities, shares of
preferred stock, $1.00 par value per share, shares of common stock,
$1.00 par value per share, and warrants (collectively, "Offered
Securities"), hereby constitutes and appoints GEORGE L. CHAPMAN and
BRUCE DOUGLAS his true and lawful attorneys-in-fact and agents, and
each of them (with full power of substitution and resubstitution),
with full power to act without the others, his true and lawful
attorney-in-fact and agent, for him and in his name, place and
stead, in the capacities as Chairman of the Board and Principal
Executive Officer of the Company, to sign such Form S-3 and any and
all amendments and supplements, including post-effective amendments
thereto, and to file such Form S-3 and each such amendment and
supplement, including post-effective amendments, so signed, with
all exhibits thereto, and any and all other documents in connection
therewith, with the Securities and Exchange Commission, any and all
applications or other documents in connection with the listing of
the Company's Offered Securities on the New York Stock Exchange and
any and all documents required to be filed with any state
securities regulatory board or commission pertaining to the Form S-
3, hereby granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform any and all
acts and things requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might do in
person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned hereunto sets his
hand this 9th day of February, 1996.
/S/ GEORGE CHOPIVSKY, JR.
__________________________________
George Chopivsky, Jr.
Director
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, the
Principal Financial Officer of Health Care REIT, Inc. (the
"Company"), a Delaware corporation that contemplates filing a
Registration Statement on Form S-3 ("Form S-3") with the Securities
and Exchange Commission under the provisions of the Securities Act
of 1933, as amended, for the purpose of registering under such Act
shares of the Company's debt securities, shares of preferred stock,
$1.00 par value per share, shares of common stock, $1.00 par value
per share, and warrants (collectively "Offered Securities"), hereby
constitutes and appoints BRUCE G. THOMPSON and GEORGE L. CHAPMAN
his true and lawful attorneys-in-fact and agents, and each of them
(with full power of substitution and resubstitution), with full
power to act without the others, his true and lawful attorney-in-
fact and agent, for him and in his name, place and stead, in the
capacity as Principal Financial Officer, to sign such Form S-3 and
any and all amendments and supplements, including post-effective
amendments thereto, and to file such Form S-3 and each such
amendment and supplement, including post-effective amendments, so
signed, with all exhibits thereto, and any and all other documents
in connection therewith, with the Securities and Exchange
Commission, any and all applications or other documents in
connection with the listing of the Company's Offered Securities on
the New York Stock Exchange and any and all documents required to
be filed with any state securities regulatory board or commission
pertaining to the Form S-3, hereby granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do
and perform any and all acts and things requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he might do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned hereunto sets his
hand this 9th day of February, 1996.
/S/ RICHARD C. GLOWACKI
________________________________
Richard C. Glowacki
Director
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the undersigned, the
Principal Accounting Officer of Health Care REIT, Inc. (the
"Company"), a Delaware corporation that contemplates filing a
Registration Statement on Form S-3 ("Form S-3") with the Securities
and Exchange Commission under the provisions of the Securities Act
of 1933, as amended, for the purpose of registering under such Act
debt securities, shares of preferred stock, $1.00 par value per
share, shares of common stock, $1.00 par value per share, and
warrants (collectively, "Offered Securities"), hereby constitutes
and appoints BRUCE G. THOMPSON and GEORGE L. CHAPMAN her true and
lawful attorneys-in-fact and agents, and each of them (with full
power of substitution and resubstitution), with full power to act
without the others, her true and lawful attorney-in-fact and agent,
for her and in her name, place and stead, in the capacity as
Principal Accounting Officer, to sign such Form S-3 and any and all
amendments and supplements, including post-effective amendments
thereto, and to file such Form S-3 and each such amendment and
supplement, including post-effective amendments, so signed, with
all exhibits thereto, and any and all other documents in connection
therewith, with the Securities and Exchange Commission, any and all
applications or other documents in connection with the listing of
the Company's Offered Securities on the New York Stock Exchange and
any and all documents required to be filed with any state
securities regulatory board or commission pertaining to the Form S-
3, hereby granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform any and all
acts and things requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as she might do in
person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned hereunto sets her
hand this 9th day of February, 1996.
/S/ SHARON M. OSTER
________________________________
Sharon M. Oster
Director
