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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) of the
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) August 19, 1997
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NATIONWIDE HEALTH PROPERTIES, INC.
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(Exact name of registrant as specified in charter)
Maryland 1-9028 95-3997619
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(State or other (Commission (IRS employer
jurisdiction of file number) identification
incorporation) number)
610 Newport Center Drive, Suite 1150, Newport Beach, CA 92660-6429
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(Address of principal executive offices)
Registrant's telephone number, including area code:
(714) 718-4400
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Not Applicable
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(Former name or former address, if changed since last report)
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
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1.1 Distribution Agreement, dated August 19, 1997, among the Registrant,
Goldman, Sachs & Co., and Merrill Lynch & Co., Merill Lynch, Pierce,
Fenner & Smith, Incorporated.
1.2 Indenture, dated August 19, 1997, between the Registrant and The Bank
of New York.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NATIONWIDE HEALTH PROPERTIES, INC.
Date: August 19, 1997 By: /s/ Mark L. Desmond
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Name: Mark L. Desmond
Title: Senior Vice President and
Chief Financial Officer
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EXHIBIT INDEX
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<TABLE>
<CAPTION>
Exhibit
No. Description
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<S> <C>
1.1 Distribution Agreement, dated August 19, 1997, among the
Registrant, Goldman, Sachs & Co., and Merrill Lynch & Co., Merill
Lynch, Pierce, Fenner & Smith, Incorporated.
1.2 Indenture, dated August 19, 1997, between the Registrant and The
Bank of New York.
</TABLE>
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EXHIBIT 1.1
NATIONWIDE HEALTH PROPERTIES, INC.
Medium-Term Notes, Series C, Due Nine Months or More
From Date of Issue
DISTRIBUTION AGREEMENT
August 19, 1997
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower, 10th Floor
World Financial Center
New York, New York 10281-1310
Dear Sirs:
Nationwide Health Properties, Inc., a Maryland corporation (the "Company")
confirms its agreement (the "Agreement") with Goldman, Sachs & Co. and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (each an "Agent"
and collectively the "Agents") with respect to the issue and sale by the Company
of its Medium-Term Notes, Series C, described herein (the "Notes"). The Notes
are to be issued pursuant to an indenture (as the same may be amended or
restated from time to time, the "Indenture"), dated as of August 19, 1997,
between the Company and The Bank of New York, as trustee (the "Trustee").
As of the date hereof, the Company has authorized the issuance and sale of
up to $300,000,000 (or its equivalent based on the applicable exchange rate at
the time of issuance, in such foreign currencies or units of two or more
currencies as the Company shall designate at the time of issuance) aggregate
initial offering price of Notes by the Company directly or through one or both
of the Agents pursuant to the terms of this Agreement. It is understood,
however, that the Company may from time to time, pursuant to an Officers'
Certificate delivered to the Trustee pursuant to Section 301 of the Indenture
(with an original copy thereof delivered to the Agents), reduce the authorized
aggregate initial offering price of the
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Notes (but not below the aggregate initial offering price of Notes previously
issued under the Indenture) or authorize the issuance of additional Notes and
that such additional Notes may be distributed directly by the Company or through
or to one or both of the Agents pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company directly
to purchasers, in which case the Agents will act as agents of the Company in
soliciting Note purchases, and (as may from time to time be agreed to by the
Company and the related Agent or Agents) to an Agent as principal for resale to
purchasers.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-32135) for the
registration of debt securities, including the Notes, under the Securities Act
of 1933 (the "1933 Act") and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations"). Such registration statement has been
declared effective by the Commission and the Indenture has been qualified under
the Trust Indenture Act of 1939 (the "1939 Act"). Such registration statement
(and any further registration statements which may be filed by the Company for
the purpose of registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit) and the
prospectus constituting a part thereof, and any prospectus supplements relating
to the Notes, including all documents incorporated therein by reference, as from
time to time amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934 (the "1934 Act"), the 1933 Act or otherwise, are
referred to herein as the "Registration Statement" and the "Prospectus",
respectively, except that if any revised prospectus shall be provided to an
Agent by the Company for use in connection with the offering of the Notes which
is not required to be filed by the Company pursuant to Rule 424(b) of the 1933
Act Regulations, the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to an Agent for such use.
SECTION 1. Appointment as Agents.
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(a) Appointment. Subject to the terms and conditions stated herein, the
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Company hereby appoints the Agents as the exclusive agents for the purpose of
soliciting purchases of the Notes from the Company by others and agrees that
whenever the Company determines to sell Notes directly to an Agent as principal
for resale to others, it will enter into a Terms Agreement (as hereafter
defined) relating to each such sale in accordance with the provisions of Section
3(b) hereof if requested by the applicable Agent. The Company agrees that
during the period the Agents are acting as the Company's agents hereunder, the
Company will not contact or solicit potential investors to purchase the Notes
and will not engage any other party to assist in the placement of the Notes.
The Agents are authorized to appoint sub-agents or to engage the services of any
other broker or dealer in connection with the offer or sale of the Notes.
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(b) Reasonable Efforts Solicitations; Right to Reject Offers. Upon receipt
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of instructions from the Company, the Agents will use their reasonable efforts
to solicit purchases of such principal amount of Notes as the Company and the
Agents shall agree upon from time to time during the term of this Agreement, it
being understood that the Company shall not approve the solicitation of
purchases of Notes in excess of the amount which shall be authorized by the
Company from time to time or in excess of the initial offering price of Notes
registered pursuant to the Registration Statement. No Agent will have
responsibility for maintaining records with respect to the aggregate initial
offering price of Notes sold, or of otherwise monitoring the availability of
Notes for sale under the Registration Statement. Each Agent will communicate to
the Company, orally or in writing, the offer to purchase Notes, other than those
offers rejected by such Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be deemed a breach of such
Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of the Notes, in whole or in part. The parties hereto agree
that no Agent shall be under any obligation to solicit purchases of Notes upon
the occurrence and continuation of any event described in Section 12(b) hereof,
irrespective of the date such event occurs.
(c) Solicitations as Agents; Purchases as Principal. In soliciting
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purchases of the Notes on behalf of the Company, unless otherwise specified
pursuant to the terms hereof, the Agents shall act solely as agents for the
Company and not as principals. Each Agent shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Company. No
Agent shall have any liability to the Company in the event any such purchase is
not consummated for any reason. No Agent shall have any obligation to purchase
Notes from the Company as principal, but either Agent may agree from time to
time to purchase Notes as principal. Any such purchase of Notes by an Agent as
principal shall be made pursuant to a Terms Agreement in accordance with Section
3(b) hereof if requested by the applicable Agent.
(d) Reliance. The Company and the Agents agree that any Notes the
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placement of which the Agents arrange shall be placed by the Agents, and any
Notes purchased by the Agents shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
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(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of the acceptance by the Company of an offer for the
purchase of Notes (whether through such Agent as agent or such Agent as
principal), as of the date of the delivery of Notes (whether through such Agent
as agent or to such Agent as principal) (the date of each such delivery to the
related Agent or Agents as principal being hereafter referred to as a
"Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for
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the establishment of or a change in, the interest rates, maturity or price of
Notes or similar changes) or there is filed with the Commission any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K relating exclusively to the issuance of debt securities under the
Registration Statement other than the Notes) (each of the times referenced above
being referred to herein as a "Representation Date") as follows:
(i) Due Incorporation and Qualification. The Company has been duly
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incorporated and is validly existing as a corporation in good standing under the
laws of the State of Maryland with corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the business or financial condition
of the Company and its subsidiaries considered as one enterprise.
(ii) Subsidiaries. Each subsidiary of the Company which is a
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significant subsidiary (each a "Significant Subsidiary") as defined in Rule 405
of Regulation C of the 1933 Act Regulations has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not have a
material adverse effect on the business or financial condition of the Company
and its subsidiaries considered as one enterprise; and all of the issued and
outstanding capital stock of each such Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and, except for
directors' qualifying shares, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(iii) REIT Qualification. The Company has at all times since December
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31, 1985 operated in such manner as to qualify as a "real estate investment
trust" (a "REIT") under the Internal Revenue Code of 1986, as amended (the
"Code"), and intends to continue to operate in such manner.
(iv) Registration Statement and Prospectus. At the time the
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Registration Statement became effective, the Registration Statement complied,
and as of the applicable Representation Date will comply, in all material
respects with the applicable requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the Commission
promulgated thereunder (the "1939 Act Regulations"). The Registration
Statement, at the time it became effective, did not, and at each time thereafter
at which any amendment to the Registration Statement becomes effective or any
Annual Report on Form 10-K is filed by the Company with
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the Commission and as of the applicable Representation Date, will not, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
The Prospectus, as of the date hereof does not, and as of the applicable
Representation Date will not, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information furnished to
the Company in writing by the Agents expressly for use in the Registration
Statement or Prospectus or to those parts of the Registration Statement which
constitute the Trustee's Statement of Eligibility and Qualification under the
1939 Act on Form T-1.
(v) Incorporated Documents. The documents incorporated by reference
----------------------
in the Prospectus, at the time they were filed with the Commission, complied in
all material respects with the requirements of the 1934 Act and the rules and
regulations promulgated thereunder (the "1934 Act Regulations"), and, when read
together and with the other information in or incorporated by reference in the
Prospectus, did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(vi) Accountants. The accountants who certified the financial
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statements included or incorporated by reference in the Prospectus are
independent public accountants within the meaning of the 1933 Act and the 1933
Act Regulations.
(vii) Financial Statements. The financial statements and any
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supporting schedules of the Company and its consolidated subsidiaries included
or incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the consolidated results
of their operations for the periods specified; and, except as stated therein,
said financial statements have been prepared in conformity with generally
accepted accounting principles in the United States applied on a consistent
basis; and any supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein.
(viii) Material Changes or Material Transactions. Since the respective
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dates as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business and (B) there have been no material
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transactions entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business.
(ix) Authorization, Execution and Delivery of this Agreement. The
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Company has duly authorized, executed and delivered this Agreement and any Terms
Agreement and each of this Agreement and any such Terms Agreement constitutes
the valid and binding agreement of the Company.
(x) The Indenture. The Indenture has been duly and validly authorized,
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executed and delivered by the Company and assuming it has been duly and validly
authorized, executed and delivered by the Trustee, constitutes a legally valid
and binding obligation of the Company, enforceable in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally or by general equity
principles.
(xi) The Notes. The Notes have been duly and validly authorized by the
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Company for issuance, offer and sale pursuant to this Agreement and, when
completed as contemplated by the Procedures (as hereinafter defined), executed,
authenticated and delivered pursuant to the provisions of the Indenture and this
Agreement against payment of the consideration set forth in the Prospectus or
pursuant to any Terms Agreement, will constitute legally valid and binding
obligations of the Company enforceable in accordance with their terms, except as
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally or by general equity principles, and will
be entitled to the benefits of the Indenture; and the Notes and the Indenture
conform in all material respects to all statements relating thereto contained in
the Prospectus.
(xii) No Defaults; Compliance with Laws; Regulatory Approvals. Neither
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the Company nor any of its Significant Subsidiaries is in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it or any of them
may be bound, or to which any of their property or assets is subject, which
default would materially adversely affect the business or financial condition of
the Company and its subsidiaries considered as one enterprise; neither the
Company nor any of its Significant Subsidiaries is in violation of its charter
or bylaws; the execution, delivery and performance of this Agreement, any Terms
Agreement and the Indenture and the consummation of the transactions
contemplated herein and therein will not conflict with, or constitute a breach
of, or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
Significant Subsidiaries pursuant to, any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company
or any of its subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any such
subsidiary is subject, nor will such action result in any violation of the
provisions of the charter or bylaws of the Company or, to the best
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knowledge of the Company, any law, administrative regulation or administrative
or court order or decree; and no consent, approval, authorization, order or
decree of any court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this Agreement,
any Terms Agreement or the Indenture, except such as may be required under the
1933 Act or the 1933 Act Regulations or the 1939 Act or the 1939 Act Regulations
or as may be required by state securities or Blue Sky laws.
(xiii) Legal Proceedings; Contracts. Except as set forth in the
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Registration Statement, there is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against the Company or any of its
subsidiaries which is required to be disclosed in the Registration Statement or
which might in the opinion of the Company result in any material adverse change
in the business or financial condition of the Company and its subsidiaries
considered as one enterprise, or which might materially and adversely affect the
properties or assets thereof or which might materially and adversely affect the
consummation of this Agreement or any Terms Agreement; all pending legal or
governmental proceedings to which the Company or any of its subsidiaries is a
party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement, including ordinary
routine litigation incidental to its business, are, considered in the aggregate,
not material; and there are no contracts or documents of the Company or any of
its subsidiaries which are required to be filed as exhibits to the Registration
Statement by the 1933 Act or by the 1933 Act Regulations which have not been so
filed.
(xiv) Licenses. The Company owns or possesses or has obtained all
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material governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to operate its
properties and to carry on its business as presently conducted where its
ownership or lease of substantial properties or the conduct of its business
requires such ownership or possession or the obtaining of such governmental
licenses, permits, consents, orders, approvals and other authorizations and
where the failure to do so would materially adversely affect the business or
financial condition of the Company and its subsidiaries considered as one
enterprise.
(xv) Rating of the Notes. The Notes are rated at least "Baa2" by
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Moody's Investors Service, Inc. and at least "BBB" by Standard & Poor's Ratings
Group.
(xvi) The Company and its subsidiaries have good title to all real
property or interests in real property owned by it or any of them, in each case
free and clear of all liens, encumbrances and defects except such as are
described in the Registration Statement or such as do not materially adversely
affect the value of such property and interests as reflected in the Company's
financial statements and do not materially interfere with the use made and
proposed to be made of such property and interests by the Company and its
subsidiaries; the instruments securing the Company's and its
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subsidiaries' real estate mortgage loans create valid liens upon the real
properties described in such instruments enjoying the priorities intended,
subject only to exceptions to title which do not materially adversely
affect the value of such real properties and interests as reflected in the
Company's financial statements; and no material real property or buildings
are held under lease by the Company or any of its subsidiaries.
(xvii) Investment Company Act. The Company is not required to be
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registered under the Investment Company Act of 1940, as amended (the "1940
Act").
(b) Additional Certifications. Any certificate signed by any director or
-------------------------
officer of the Company and delivered to any Agent or to counsel to the Agents in
connection with an offering of Notes through one or more Agents as agent or the
sale of Notes to one or more Agents as principal shall be deemed a
representation and warranty by the Company to the applicable Agents as to the
matters covered thereby on the date of such certificate and at each
Representation Date subsequent thereto.
SECTION 3. Solicitations as Agents; Purchases as Principal.
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(a) Solicitations as Agents. On the basis of the representations and
-----------------------
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent agrees, when acting as an agent of the Company, to use its
reasonable efforts to solicit offers to purchase the Notes upon the terms and
conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through any Agent, as agent, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, any such Agent will forthwith suspend solicitation of
purchases from the Company until such time as the Company has advised such Agent
that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount or otherwise as agreed to by the Company and the related Agent, equal
to the applicable percentage of the principal amount of each Note sold by the
Company as a result of a solicitation made by such Agent as set forth in
Schedule A hereto.
The purchase price, interest rate, maturity date and other terms of the
Notes shall be agreed upon by the Company and the related Agent or Agents and
set forth in a pricing supplement to the Prospectus to be prepared following
each acceptance by the Company of an offer for the purchase of Notes. Except as
may be otherwise provided in such supplement to the Prospectus, the Notes will
be issued in denominations of $1,000 and integral multiples thereof. All Notes
sold through the Agents as agents will be sold at 100% of their principal amount
unless otherwise agreed to by the Company and the related Agent or Agents.
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
----------------------
shall be made in accordance with the terms contained herein and, if requested by
the applicable Agent,
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pursuant to a separate agreement which will provide for the sale of the Notes
to, and the purchase and reoffering thereof by, such Agent. Each such separate
agreement (which may be an oral agreement) between an Agent and the Company is
herein referred to as a "Terms Agreement". Unless the context otherwise
requires, each reference contained herein to "this Agreement" shall be deemed to
include any Terms Agreement between the Company and any Agent. Each such Terms
Agreement, whether oral or in writing, shall be with respect to such information
(as applicable) as is specified in Exhibit A hereto. An Agent's commitment to
purchase Notes as principal pursuant to any Terms Agreement or otherwise shall
be deemed to have been made on the basis of the representations and warranties
of the Company herein contained and shall be subject to the terms and conditions
herein set forth. Each Terms Agreement shall specify the principal amount of
Notes to be purchased by the applicable Agent pursuant thereto, the price to be
paid to the Company for such Notes (which, if not so specified in a Terms
Agreement, shall be at a discount equivalent to the applicable commission set
forth in Schedule A hereto), the time and place of delivery of and payment for
such Notes, any provisions relating to rights of, and default by, purchasers
acting together with the applicable Agent in the reoffering of the Notes, and
such other provisions (including further terms of the Notes) as may be mutually
agreed upon. The Agents may utilize a selling or dealer group in connection
with the resale of the Notes purchased. Such Terms Agreement shall also specify
whether or not any of the officer's certificate, opinions of counsel or comfort
letter specified in Sections 7(b), 7(c) and 7(d) hereof shall be required to be
delivered by the Company in connection therewith.
(c) Administrative Procedures. Administrative procedures with respect to
-------------------------
the sale of Notes shall be agreed upon from time to time by the Agents and the
Company (the "Procedures"). The Agents and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Procedures.
(d) Delivery of Closing Documents. The documents required to be delivered
-----------------------------
by Section 5 hereof shall be delivered at the office of O'Melveny & Myers
L.L.P., 610 Newport Center Drive, Suite 1700, Newport Beach, California 92660-
6429 on the date hereof, or at such other time or place as the Agents and the
Company may agree.
SECTION 4. Covenants of the Company.
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The Company covenants with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agents
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immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant to the 1934
Act which will be incorporated by reference in the Prospectus (other than any
Current Report on Form 8-K relating exclusively to an offering of debt
securities under the Registration Statement other than the Notes), (iii) of the
receipt of any comments from the Commission with respect to the Registration
Statement or the Prospectus, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, and (v) of the
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issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose.
The Company will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the lifting thereof at
the earliest possible moment.
(b) Notice of Certain Proposed Filings. Except as otherwise provided in
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subsection (l) of this Section, the Company will give the Agents notice of its
intention to file or prepare any additional registration statement with respect
to the registration of additional Notes, any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (other than an
amendment or supplement providing solely for the establishment of or change in,
the interest rates, maturity or price of Notes or other similar changes),
whether by the filing of documents pursuant to the 1934 Act (other than any
Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement other than the Notes), the 1933 Act
or otherwise, and will furnish the Agents with copies of any such amendment or
supplement or other documents proposed to be filed or prepared a reasonable time
in advance of such proposed filing or preparation, as the case may be, and will
not file any such amendment or supplement in a form to which you or your counsel
shall reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The Company
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will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of
the Prospectus (as amended or supplemented) (other than an amendment or
supplement which relates exclusively to an offering of debt securities under the
Registration Statement other than the Notes) as the Agents shall reasonably
request so long as the Agents are required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare, with
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respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents and will file such Pricing Supplement pursuant to Rule
424(b)(3) under the 1933 Act not later than the close of business of the
Commission on the fifth business day after the date on which such Pricing
Supplement is first used.
(e) Prospectus Revisions -- Material Changes. Except as otherwise provided
----------------------------------------
in subsection (l) of this Section, if at any time during the term of this
Agreement any event shall occur or condition exist as a result of which it is
necessary, in the reasonable opinion of counsel to the Agents or counsel for the
Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of either such counsel, to
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amend or supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations,
immediate notice shall be given, and confirmed in writing, to the Agents to
cease the solicitation of offers to purchase the Notes in the Agents' capacity
as agents and to cease sales of any Notes either Agent may then own as principal
pursuant to a Terms Agreement, and the Company will promptly prepare and file
with the Commission such amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
and Prospectus comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information.
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Except as otherwise provided in subsection (l) of this Section, on or prior to
the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall cause the
Registration Statement and the Prospectus to be amended or supplemented, whether
by the filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise,
to include or incorporate by reference financial information with respect
thereto and corresponding information for the comparable period of the preceding
fiscal year, as well as such other information and explanations as shall be
necessary for an understanding thereof or as shall be required by the 1933 Act
or the 1933 Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information.
-----------------------------------------------------
Except as otherwise provided in subsection (l) of this Section, on or prior to
the date on which there shall be released to the general public financial
information included in or derived from the audited financial statements of the
Company for the preceding fiscal year, the Company shall cause the Registration
Statement and the Prospectus to be amended, whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, to include or incorporate
by reference such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other information
and explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company, by applying the provisions of Rule
-------------------
158 under the 1933 Act, will make generally available to its security holders as
soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 under the 1933 Act) covering each twelve month period beginning, in
each case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in such Rule 158) of the Registration
Statement with respect to each sale of Notes.
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
-----------------------
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such
11
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states and other jurisdictions of the United States as the Agents may designate,
and will maintain such qualifications in effect for as long as may be required
for the distribution of the Notes; provided, however, that the Company shall not
be obligated to file any general consent to service of process or to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified. The
Company will file such statements and reports as may be required by the laws of
each jurisdiction in which the Notes have been qualified as above provided. The
Company will promptly advise the Agents of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any such state or jurisdiction or the initiating or threatening of
any proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period when the Prospectus
----------------
is required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the 1934 Act. Such documents will comply in all material respects
with the requirements of the 1934 Act and the 1934 Act Regulations and to the
extent such documents are incorporated by reference in the Prospectus, when read
together with the other information in or incorporated by reference into the
Prospectus, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
are made, not misleading.
(k) Stand-Off Agreement. Between the date of any Terms Agreement and the
-------------------
Settlement Date with respect to such Terms Agreement, the Company will not,
without the prior written consent of each Agent party thereto, directly or
indirectly, sell, offer to sell, contract to sell or otherwise dispose of, or
announce the offering of, any debt securities of the Company, or any security
exchangeable into such debt securities (other than the Notes that are to be sold
pursuant to such Terms Agreement and commercial paper in the ordinary course of
business), except as may otherwise be provided in any such Terms Agreement.
(l) Suspension of Certain Obligations. The Company shall not be required
---------------------------------
to comply with the provisions of subsections (a), (b), (c), (e), (f), (g) or (j)
of this Section or the provisions of Section 7 hereof during any period from the
time (i) the Agents shall have received written notification from the Company to
suspend solicitation of purchases of the Notes in their capacity as agents and
(ii) the earlier of the date on which the Agents shall not then hold any Notes
as principal purchased pursuant to a Terms Agreement and the date which is 30
days (nine months with respect to subsections (e) and (j) of this Section) from
the date on which the Agents shall have received written notice from the Company
to suspend solicitations of purchases of the Notes, to the time the Company
shall determine that solicitation of purchases of the Notes should be resumed or
shall subsequently enter into a new Terms Agreement with any Agent.
(m) Use of Proceeds. The net proceeds from the sale of Notes will be used
---------------
by the Company as described in the Prospectus.
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SECTION 5. Conditions of Obligations.
-------------------------
The obligations of the Agents to solicit offers to purchase the Notes as
agents of the Company, the obligations of any purchasers of the Notes sold
through an Agent as agent, and any obligation of the Agents to purchase Notes as
principal pursuant to a Terms Agreement or otherwise will be subject to the
accuracy of the representations and warranties on the part of the Company herein
contained and to the accuracy of the statements of the Company's officers made
in any certificate furnished pursuant to the provisions hereof, to the
performance and observance by the Company of all its covenants and agreements
herein contained and to the following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall have received the
--------------
following legal opinions, dated as of the date hereof and in form and substance
satisfactory to the Agents and their counsel:
(1) Opinion of Company Counsel. The opinion of O'Melveny & Myers
--------------------------
L.L.P., counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is validly
existing in good standing under the laws of the State of Maryland.
(ii) The Company has corporate power to own its properties and
assets and to carry on its business as described in the Registration
Statement.
(iii) To the best of such counsel's knowledge, the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise.
(iv) Nationwide Health Properties Finance Corporation, a Delaware
corporation, has been duly incorporated and is validly existing in good
standing under the laws of the jurisdiction of its incorporation with
corporate power to conduct its business as currently conducted.
(v) The execution, delivery and performance of this Agreement
and, if applicable, the relevant Terms Agreement, have each been duly
authorized by all necessary corporate action on the part of the
Company, and have each been duly executed and delivered by the Company.
(vi) The Indenture has been qualified under the 1939 Act.
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(vii) The execution, delivery and performance of the Indenture
have been duly authorized by all necessary corporate action on the part
of the Company, the Indenture has been duly executed and delivered by
the Company and constitutes the legally valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms, except as limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally. Such
counsel may state, however, that enforceability of the Indenture is
subject to the effect of general principles of equity including,
without limitation, concepts of materiality, reasonableness, good faith
and fair dealing and the possible unavailability of specific
performance or injunctive relief, regardless of whether considered in a
proceeding in equity or at law.
(viii) The Notes are in forms permitted by the Indenture, have been
duly authorized by all necessary corporate action on the part of the
Company and, when completed as contemplated by the Procedures, executed
and authenticated as specified in the Indenture and delivered against
payment of the purchase price therefor pursuant to this Agreement as
provided in the Prospectus and any Terms Agreement, will be legally
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally. Such counsel may state, however,
that enforceability of the Notes is subject to the effect of general
principles of equity including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law.
(ix) The Registration Statement has been declared effective under
the 1933 Act and, to their knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued or
threatened by the Commission.
(x) The Registration Statement, on the date it became effective,
appeared on its face to comply in all material respects with the
requirements as to form for registration statements on Form S-3 under
the 1933 Act and the related rules and regulations in effect at the
date of effectiveness, except no opinion need be expressed concerning
the financial statements and other financial information contained or
incorporated by reference therein or the Statement of Eligibility of
the Trustee on Form T-1 filed as an exhibit thereto.
(xi) Each document filed pursuant to the 1934 Act (other than the
financial statements and other financial data included or incorporated
by reference therein, as to which no opinion need be rendered) and
incorporated by reference in the Prospectus, on the respective dates
they were filed, appeared
14
<PAGE>
on their face to comply in all material respects with the 1934 Act and
the 1934 Act Regulations thereunder in effect at the respective dates
of their filing.
(xii) The statements in the Prospectus under the captions
"Description of the Notes" and "Description of Debt Securities", and
"United States Taxation", to the extent that they constitute matters of
law, summaries of legal matters or documents, or legal conclusions,
have been reviewed by them and are correct in all material respects.
(xiii) No order, authorization, consent, permit or approval of any
governmental authority is required on the part of the Company for the
consummation of the transactions contemplated by this Agreement, except
such as may be required under the 1933 Act or the 1933 Act Regulations
or the 1939 Act or the 1939 Act Regulations or state securities laws.
(xiv) The Company is not an "investment company" within the
meaning of the 1940 Act.
(xv) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened which are required to
be disclosed in the Registration Statement, other than those disclosed
therein.
(xvi) To the best of such counsel's knowledge, except as
otherwise stated or incorporated by reference in the Prospectus, the
Company's execution and delivery of and performance of its obligations
under this Agreement, any Terms Agreement and the Indenture do not (A)
conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Significant
Subsidiaries pursuant to any other agreement identified in the Company
Certificate dated as of the date hereof, a copy of which is attached
hereto, provided that the Company complies with the provisions of
Section 9.4(a)(xii) of the Credit Agreement, dated as of May 20, 1993,
as amended, among the Company, Wells Fargo Bank, National Association,
and certain other banks named therein, (B) result in any violation of
the provisions of the charter or bylaws of the Company or (C) result in
any violation of any applicable law, administrative regulation or
administrative or court decree the effect of which would be material to
the Company and its subsidiaries taken as a whole.
(xvii) Such counsel does not know of any contract or other document
required to be described or referred to in the Registration Statement
or to be filed or incorporated by reference as an exhibit thereto which
is not described or referred to therein or filed or incorporated by
reference as an exhibit thereto.
15
<PAGE>
(xviii) Based upon current law, including relevant statutes,
regulations and judicial and administrative precedent (which is subject
to change on a retroactive basis), and subject to all of the
limitations, qualifications, conditions and factual assumptions set
forth herein, the Company has qualified as a REIT under the Code for
each taxable year commencing with its taxable year ended December 31,
1993, and the organization and method of operation of the Company and
each of its subsidiaries will enable the Company to continue to meet
the requirements for qualification and taxation as a REIT for its
taxable year ending December 31, 1997 and each taxable year thereafter.
However, such counsel may state that they are unable to opine whether
the Company will actually continue to qualify as a REIT because such
qualification will depend on future transactions and events that cannot
be known at the date of such opinion.
(2) Opinion of Counsel to the Agents. The opinion of Brown & Wood llp,
--------------------------------
counsel to the Agents, covering the matters referred to in subparagraph (1)
under the subheadings (i), (v) and (vi) through (x), inclusive, above.
(3) In giving their opinions required by subsection (a)(1) and (a)(2)
of this Section, O'Melveny & Myers L.L.P. and Brown & Wood llp shall each
additionally state that they do not believe that the Registration Statement, at
the time it became effective, and if an amendment to the Registration Statement
or an Annual Report on Form 10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the Registration Statement and
prior to the date of such statement, then at the time such amendment became
effective or at the time of the most recent such filing (to the extent deemed to
be incorporated by reference in the Registration Statement and Prospectus),
contains or contained an untrue statement of a material fact or omits or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading or that the Prospectus, as amended or
supplemented at the date hereof, or (if such opinion is being delivered in
connection with a Terms Agreement pursuant to Section 7(c) hereof) at the date
of any Terms Agreement and at the Settlement Date with respect thereto, as the
case may be, contains or contained an untrue statement of a material fact or
omits or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. Such counsel may state that they express no view as to the
Statement of Eligibility and Qualification on Form T-1 filed in connection with
the Registration Statement or the financial statements and other financial and
statistical data included or incorporated by reference in such Registration
Statement or Prospectus.
16
<PAGE>
(b) Officers' Certificate. At the date hereof the Agents shall have
---------------------
received a certificate of the President or Vice President and the chief
financial or chief accounting officer of the Company, dated as of the date
hereof, to the effect that (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus or since
the date of any Terms Agreement, there has not been any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) the
other representations and warranties of the Company contained in Section 2
hereof are true and correct with the same force and effect as though expressly
made at and as of the date of such certificate, (iii) the Company has performed
or complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and, to their knowledge, no proceedings for that purpose have been
initiated or threatened by the Commission.
(c) Comfort Letter. On the date hereof, the Agents shall have received a
--------------
letter from Arthur Andersen LLP, dated as of the date hereof and in form and
substance previously agreed to by the Company and the Agents.
(d) Other Documents. On the date hereof and on each Settlement Date with
---------------
respect to any Terms Agreement, counsel to the Agents shall have been furnished
with such documents and opinions as such counsel may reasonably require for the
purpose of enabling such counsel to pass upon the issuance and sale of Notes as
herein contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of Notes as herein
contemplated shall be satisfactory in form and substance to the Agents and to
counsel to the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of the
Agent party thereto, any Terms Agreement) may be terminated by any of the Agents
(as to itself only) by notice to the Company at any time and any such
termination shall be without liability of any party to any other party, except
that the covenant regarding provision of an earnings statement set forth in
Section 4(h) hereof, the provisions concerning payment of expenses under Section
10 hereof, the indemnity and contribution agreements set forth in Sections 8 and
9 hereof, the provisions concerning the representations, warranties and
agreements to survive delivery set forth in Section 11 hereof and the provisions
set forth under "Parties" of Section 15 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
---------------------------------------------------------
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make
17
<PAGE>
payment for a Note on the date fixed for settlement, the applicable Agent shall
promptly notify the Company and deliver the Note to the Company, and, if such
Agent has theretofore paid the Company for such Note, the Company will promptly
return such funds to such Agent. If such failure occurred for any reason other
than default by the applicable Agent in the performance of its obligations
hereunder, the Company will reimburse such Agent on an equitable basis for its
loss of the use of the funds for the period such funds were credited to the
Company's account.
SECTION 7. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees with each Agent that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by it
-----------------------------------------------
of an offer for the purchase of Notes, and each delivery of Notes to such Agent
pursuant to a Terms Agreement, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement and in
any certificate theretofore delivered to such Agent pursuant hereto are true and
correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the purchaser or its agent, or to such Agent, of the
Note or Notes relating to such acceptance or sale, as the case may be, as though
made at and as of each such time (and it is understood that such representations
and warranties shall relate to the Registration Statement and Prospectus as
amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Subject to the provisions of
-----------------------------------
Section 4(l) hereof, each time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an amendment or supplement
providing solely for the establishment of or a change in the interest rates,
maturity or price of Notes or similar changes) or there is filed with the
Commission any document incorporated by reference into the Prospectus (other
than any Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement other than the Notes) or (if
required pursuant to the terms of a Terms Agreement) the Company sells Notes to
such Agent pursuant to a Terms Agreement, the Company shall furnish or cause to
be furnished to such Agent forthwith a certificate dated the date of filing with
the Commission of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form satisfactory to
such Agent to the effect that the statements contained in the certificate
referred to in Section 5(b) hereof which were last furnished to such Agent are
true and correct at the time of such amendment, supplement, filing or sale, as
the case may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
said Section 5(b), modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such
certificate.
(c) Subsequent Delivery of Legal Opinions. Subject to the provisions of
-------------------------------------
Section 4(l) hereof, each time that the Registration Statement or the Prospectus
shall be amended or
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<PAGE>
supplemented (other than by an amendment or supplement providing solely for the
establishment of or a change in the interest rates, maturity or price of the
Notes or similar changes or solely for the inclusion of additional financial
information and other than by an amendment or supplement which relates
exclusively to an offering of debt securities under the Registration Statement
other than the Notes) or there is filed with the Commission any document
incorporated by reference into the Prospectus (other than any Quarterly Report
on Form 10-Q or any Current Report on Form 8-K, unless such Agent shall
otherwise reasonably request) or (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to such Agent pursuant to a Terms Agreement,
the Company shall furnish or cause to be furnished forthwith to such Agent and
to counsel to the Agents a written opinion of O'Melveny & Myers L.L.P. or other
counsel satisfactory to such Agent dated the date of filing with the Commission
of such supplement or document, the date of effectiveness of such amendment, or
the date of such sale, as the case may be, in form and substance satisfactory to
such Agent, of the same tenor as the opinions referred to in Sections 5(a)(1)
and (a)(3) hereof, but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such opinions; or, in lieu of such opinions, counsel last furnishing such
opinion to such Agent shall furnish such Agent with a letter substantially to
the effect that such Agent may rely on such last opinion to the same extent as
though it was dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Subject to the provisions of
--------------------------------------
Section 4(l) hereof, each time that the Registration Statement or the Prospectus
shall be amended or supplemented to include additional financial information or
there is filed with the Commission any document incorporated by reference into
the Prospectus which contains additional financial information or (if required
pursuant to the terms of a Terms Agreement) the Company sells Notes to such
Agent pursuant to a Terms Agreement, the Company shall cause Arthur Andersen LLP
or other independent certified public accountants satisfactory to such Agent,
forthwith to furnish such Agent with a letter, dated the date of filing with the
Commission of such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form satisfactory to
such Agent, of the same tenor as the letter referred to in Section 5(c) hereof
but modified to relate to the Registration Statement and Prospectus, as amended
and supplemented to the date of such letter and with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Company; provided, however, that if
the Registration Statement or the Prospectus is amended or supplemented solely
to include financial information as of and for a fiscal quarter, Arthur Andersen
LLP or other independent certified public accountants satisfactory to such
Agent, may limit the scope of such letter to the unaudited financial statements
included in such amendment or supplement unless any other information included
therein of an accounting, financial or statistical nature is of such a nature
that, in the reasonable judgment of such Agent, such letter should cover such
other information.
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SECTION 8. Indemnification.
---------------
(a) Indemnification of the Agents. The Company agrees to indemnify and
-----------------------------
hold harmless each Agent and each person, if any, who controls any Agent within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission therefrom
of a material fact necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by the Agents),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto), and
provided further, however, that the indemnity agreement contained in this
subsection 8(a) shall not inure to the benefit of an Agent with respect to any
loss, liability, claim, damage or expense arising from the sale of Notes by such
Agent to any person if all of the following occur: (x) such Agent has failed to
send or give a copy of the Prospectus (excluding documents incorporated by
reference), as it may then have been amended or supplemented, to that person at
or prior to the time of written confirmation of such sales to such person and
such delivery to such person is required by the 1933 Act; (y) the untrue
statement or alleged untrue statement of a material fact in or omission or
alleged omission of a material fact from a previous form of the Prospectus was
corrected in the Prospectus, as
20
<PAGE>
then amended or supplemented; and (z) such Agent shall have been notified as to
such amendment or supplement as set forth herein and the Company shall have
delivered copies of the Prospectus, as so amended or supplemented, to such
Agent.
(b) Indemnification of Company. Each Agent agrees, severally and not
--------------------------
jointly, to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt notice to each
-------
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party of such commencement shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may assume the defense of the indemnified
party by retaining counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party and the
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel (in addition to any
local counsel) for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
(d) Foreign Currency Judgments. The Company agrees to indemnify each
--------------------------
Agent against any loss incurred by such Agent as a result of any judgment or
order being given or made for the amount due under this Agreement and such
judgment or order being paid in a currency (a "Judgment Currency") other than
U.S. dollars as a result of any variation between (i) the rate of exchange at
which U.S. dollars are converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the rate of exchange at which such Agent is able
to purchase U.S. dollars with the amount of the Judgment Currency actually
received by such Agent. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and shall continue in full force and
effect notwithstanding any such judgment
21
<PAGE>
or order as aforesaid. The term "rate of exchange" shall include any premiums
and costs of exchange payable in connection with the purchase of, or conversion
into, the relevant currency.
SECTION 9. Contribution.
------------
If the indemnification provided for in Section 8 is unavailable or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and
each Agent on the other from the offering of the Notes to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under Section 8(c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and each Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Notes (before deducting
expenses) received by the Company bear to the total commissions or discounts
received by such Agent in respect thereof. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading relates to information supplied by the Company
on the one hand or by any Agent on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Agent agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
per capita allocation (even if all Agents were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The amount paid
or payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this Section 9
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, an Agent
shall not be required to contribute any amount in excess of the amount by which
the total public offering price at which the Notes purchased by or through it
were sold exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. The
obligations of each of the Agents under this Section 9 to contribute
22
<PAGE>
are several in proportion to the respective purchases made by or through it to
which such loss, claim, damage or liability (or action in respect thereof)
relates and are not joint.
SECTION 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation and filing of the Registration Statement and
all amendments thereto and the Prospectus and any amendments or supplements
thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel and of any Calculation Agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred from time to time in connection with the transactions contemplated
hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing
fees, and the reasonable fees and disbursements of counsel to the Agents in
connection therewith and in connection with the preparation of any Blue Sky
Survey and any Legal Investment Survey;
(g) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or supplements
thereto and the delivery by the Agents of the Prospectus and any amendments
or supplements thereto in connection with solicitations or confirmations of
sales of the Notes;
(h) The preparation, printing, reproducing and delivery to the
Agents of copies of the Indenture and all supplements and amendments
thereto;
(i) Any fees charged by rating agencies for the rating of the
Notes;
(j) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of such expense by the Company;
23
<PAGE>
(l) The cost of preparing, and providing any CUSIP or other
identification numbers for, the Notes; and
(m) The fees and expenses of any Depository (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company submitted pursuant hereto or
thereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Agent or any controlling person of any
Agent, or by or on behalf of the Company, and shall survive each delivery of and
payment for any of the Notes.
SECTION 12. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any Terms
-----------------------------
Agreement) may be terminated for any reason, at any time by either the Company
or the Agents on the giving of 30 days' written notice of such termination to
the other parties hereto; provided, however, that the termination of this
Agreement by an Agent shall terminate this Agreement only between such Agent and
the Company and the Company's notice of termination as to any one Agent shall
terminate this Agreement only between itself and such Agent.
(b) Termination of a Terms Agreement or Other Agreement. (A) An Agent may
---------------------------------------------------
terminate any Terms Agreement, and (B) any purchaser of Notes through an Agent
as agent hereunder may terminate such agreement to purchase Notes, immediately
upon notice to the Company, at any time prior to the Settlement Date relating
thereto (i) if there has been, since the date of such Terms Agreement or
agreement to purchase notes or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there shall have occurred any material adverse change in the financial
markets in the United States or any outbreak or escalation of hostilities or
other national or international calamity or crisis the effect of which is such
as to make it, in the judgment of the applicable Agent or such purchaser, as the
case may be, impracticable to market the Notes subject to such Terms Agreement
or agreement to purchase Notes or enforce contracts for the sale of such Notes,
or (iii) if trading in any securities of the Company has been suspended by the
Commission or a national securities exchange, or if trading generally on either
the American Stock Exchange or the New York Stock Exchange shall have been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium shall have been declared by federal, California or New York
authorities or if a banking moratorium shall have been declared by the relevant
authorities in the country or countries of
24
<PAGE>
origin of any foreign currency or currencies in which the Notes subject to such
Terms Agreement or agreement to purchase Notes are denominated or payable, or
(iv) if the rating assigned by any nationally recognized securities rating
agency to any debt securities of the Company as of the date of any Terms
Agreement or agreement to purchase Notes shall have been lowered since that date
or if any such rating agency shall have publicly announced since that date that
it has placed any debt securities of the Company on what is commonly termed a
"watch list" for possible downgrading, or (v) if there shall have come to the
attention of the Agent or Agents party to such Terms Agreement or such
purchaser, as the case may be, any facts that would cause such Agent or Agents
or purchaser, as the case may be, to believe that the Prospectus, at the time it
was required to be delivered to a purchaser of Notes subject to such Terms
Agreement or agreement to purchase Notes, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at the time of
such delivery, not misleading. The Company and the Agents agree that no Agent
shall have any duty or obligation whatsoever to exercise the judgment permitted
under this subsection on behalf of any purchaser of Notes.
(c) General. In the event of any such termination, no party will have any
-------
liability to any other party hereto, except that (i) each Agent shall be
entitled to any commission earned in accordance with the third paragraph of
Section 3(a) hereof, (ii) if at the time of termination (a) an Agent shall own
any Notes purchased pursuant to a Terms Agreement with the intention of
reselling them or (b) an offer to purchase any of the Notes has been accepted by
the Company but the time of delivery to the purchaser or its agent of the Note
or Notes relating thereto has not occurred, the obligations set forth in Section
5 hereof and the covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be
(provided, however, that, except as provided in clause (iii) below, the
Company's obligations pursuant to Sections 4 and 7 hereof shall in any event
terminate no later than the date that is 30 days (nine months with respect to
subsections (e) and (j) of Section 4 hereof) after the time of such
termination), and (iii) the covenant set forth in Section 4(h) hereof, the
provisions of Section 5 hereof, the indemnity and contribution agreements set
forth in Sections 8 and 9 hereof, and the provisions of Sections 10, 11 and 15
hereof shall remain in effect.
SECTION 13. Notices.
-------
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, by telecopier or by telegram, and any such notice shall be effective when
received at the address specified below.
25
<PAGE>
If to the Company:
Nationwide Health Properties, Inc.
610 Newport Center Drive
Suite 1150
Newport Beach, California 92660
Attention: Mr. Mark L. Desmond
Telecopy: (714) 759-6887
If to Merrill Lynch:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower, 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy: (212) 449-2234
If to Goldman, Sachs & Co.:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Credit Department
Credit Control, Medium-Term Notes
Telecopy: (212) 902-3000
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
-------------
This Agreement and all the rights and obligations of the parties shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such State.
SECTION 15. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon the Agents
and the Company and their respective successors. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors
26
<PAGE>
referred to in Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes shall be
deemed to be a successor by reason merely of such purchase.
SECTION 16. Counterparts.
------------
This Agreement may be executed in several counterparts, each of which shall
be deemed an original hereof.
SECTION 17. Captions.
--------
The captions in this Agreement are for convenience of reference only and
shall not define or limit any of the terms or the provisions hereof.
27
<PAGE>
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its terms.
Very truly yours,
NATIONWIDE HEALTH PROPERTIES, INC.
By: /s/ Mark L. Desmond
-------------------------------
Name: Mark L. Desmond
Title: Senior Vice President
and Chief Financial Officer
Accepted:
/s/ Goldman, Sachs & Co.
- -------------------------------------
(Goldman, Sachs & Co.)
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Richard N. Doyle
----------------------------------
Name: Richard N. Doyle
Title: Authorized Signatory
28
<PAGE>
Exhibit A
The following terms, if applicable, shall be agreed to by the applicable
Agent and the Company pursuant to each Terms Agreement:
Principal Amount: $_______
Stated Maturity Date:
Original Issue Date:
Trade Date:
Issue Price: ___%
Agent's Discount or Commission:
Settlement Date and Time:
Additional Terms:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates:
Day Count Convention:
[ ] 30/360 for the period
from _______ to ________.
[ ] Actual/360 for the period from _______ to ________.
[ ] Actual/Actual for the period from _______ to
________.
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread and/or Spread Multiplier, if any:
Interest Reset Dates:
Interest Payment Dates:
Regular Record Dates:
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Calculation Agent:
Day Count Convention:
[ ] Actual/360 for the period from _______ to ________.
[ ] Actual/Actual for the period from _______ to
________.
[ ] Other:
A-1
<PAGE>
If Redeemable:
Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage
Reduction:
If Repayable:
Optional Repayment Dates:
Repayment Price:
Currency:
Specified Currency (if other than U.S. dollars)
Minimum Denominations:
Also, specification as to the requirements for:
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the Distribution Agreement.
A-2
<PAGE>
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company shall
pay the applicable Agent, on a discount basis, a commission for the sale of each
Note by such Agent equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL
- --------------- ----------
AMOUNT
- ------
<S> <C>
From 9 months to less than 1 year .............. .125%
From 1 year to less than 18 months ............. .150%
From 18 months to less than 2 years ............ .200%
From 2 years to less than 3 years .............. .250%
From 3 years to less than 4 years .............. .350%
From 4 years to less than 5 years .............. .450%
From 5 years to less than 6 years .............. .500%
From 6 years to less than 7 years .............. .550%
From 7 years to less than 10 years ............. .600%
From 10 years to less than 15 years ............ .625%
From 15 years to less than 20 years ............ .675%
From 20 years to 30 years ...................... .750%
From more than 30 years ........................ *
</TABLE>
________________________________________
* As agreed upon by the Company and the applicable Agent at the related time of
sale.
Sch. A
<PAGE>
EXHIBIT 1.2
================================================================================
NATIONWIDE HEALTH PROPERTIES, INC.,
Issuer
TO
THE BANK OF NEW YORK,
Trustee
______________
INDENTURE
______________
Dated as of August 19, 1997
=============================================================================
<PAGE>
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated August 19, 1997*
<TABLE>
<CAPTION>
Section of Act Indenture Section
- --------------- -----------------
<S> <C>
310(a)(1)......................................................609
(a)(2)......................................................609
(a)(3)...........................................Not Applicable
(a)(4)...........................................Not Applicable
(a)(5)......................................................609
(b).........................................................608
(b)(1)......................................................608
(b)(9)......................................................608
311(a).........................................................613
(b).........................................................613
(b)(2)...................................................703(2)
312(a).........................................................701
(b).........................................................702
(c).........................................................702
313(a)......................................................703(1)
(b)......................................................703(3)
(c)..............................................703(1), 703(2)
(d)..............................................703(3), 703(4)
314(a).........................................................704
(b)..............................................Not Applicable
(c)(1)......................................................102
(c)(2)......................................................102
(c)(3)...........................................Not Applicable
(d)..............................................Not applicable
(e).........................................................102
315(a)......................................................601(1)
(b).........................................................602
(c)......................................................601(2)
(d)......................................................601(3)
(d)(1)................................................601(3)(a)
(d)(2)................................................601(3)(b)
(d)(3)................................................601(3)(c)
(e).........................................................514
316(a)(1)(A)...................................................512
(a)(1)(B)...................................................513
(a)(2)...........................................Not Applicable
(b).........................................................508
(c)..............................................Not Applicable
317(a)(1)......................................................503
(a)(2)......................................................504
(b)........................................................1003
318(a).........................................................108
</TABLE>
______________________
*NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS**
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
RECITALS OF THE COMPANY............................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions............................................. 1
Act.............................................................. 2
Additional Amounts............................................... 2
Affiliate........................................................ 2
Authenticating Agent............................................. 2
Authorized Newspaper............................................. 2
Bearer Security.................................................. 2
Board of Directors............................................... 2
Board Resolution................................................. 2
Business Day..................................................... 2
Capital Base..................................................... 3
Capital Lease.................................................... 3
Capital Lease Obligation......................................... 3
Capital Stock.................................................... 3
Commission....................................................... 3
Company.......................................................... 3
Company Request and Company Order................................ 3
Consolidated Net Tangible Assets................................. 3
Corporate Trust Office........................................... 3
corporation...................................................... 3
Coupon........................................................... 3
covenant defeasance.............................................. 3
Currency or Money................................................ 4
Debt............................................................. 4
Defaulted Interest............................................... 4
defeasance....................................................... 4
Depositary....................................................... 4
Dollars.......................................................... 4
Event of Default................................................. 4
Exchange Act..................................................... 4
Global Security.................................................. 4
Holder........................................................... 4
Indenture........................................................ 4
interest......................................................... 4
Interest Payment Date............................................ 5
Legal Holiday.................................................... 5
Liabilities...................................................... 5
Lien............................................................. 5
Maturity......................................................... 5
Non-Recourse Debt................................................ 5
Office or Agency................................................. 5
Officers' Certificate............................................ 5
Opinion of Counsel............................................... 5
Original Issue Discount Security................................. 5
</TABLE>
__________________________
**NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
i
<PAGE>
<TABLE>
Page
----
<S> <C>
Outstanding....................................................... 5
Paying Agent...................................................... 6
Person............................................................ 6
Place of Payment.................................................. 6
Predecessor Security.............................................. 7
Property.......................................................... 7
Redemption Date................................................... 7
Redemption Price.................................................. 7
Registered Security............................................... 7
Regular Record Date............................................... 7
Responsible Officer............................................... 7
Securities........................................................ 7
Security Register and Security Registrar.......................... 7
Senior Debt....................................................... 7
Special Record Date............................................... 7
Stated Maturity................................................... 7
Subordinated Debt................................................. 8
Subsidiary........................................................ 8
Tangible Assets................................................... 8
Tangible Net Worth................................................ 8
Trustee........................................................... 8
Trust Indenture Act............................................... 8
United States Alien............................................... 8
U.S. Government Obligations....................................... 8
Vice President.................................................... 8
Voting Stock...................................................... 8
SECTION 102. Compliance Certificates and Opinions..................... 9
SECTION 103. Form of Documents Delivered to Trustee................... 9
SECTION 104. Acts of Holders..........................................10
SECTION 105. Notices, Etc., to Trustee and Company....................11
SECTION 106. Notice to Holders; Waiver................................12
SECTION 107. Language of Notices, etc.................................12
SECTION 108. Conflict with Trust Indenture Act........................12
SECTION 109. Effect of Headings and Table of Contents.................13
SECTION 110. Successors and Assigns...................................13
SECTION 111. Separability Clause......................................13
SECTION 112. Benefits of Indenture....................................13
SECTION 113. Governing Law............................................13
SECTION 114. Legal Holidays...........................................13
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally..........................................14
SECTION 202. Form of Trustee's Certificate of Authentication..........14
SECTION 203. Provisions in Global Security............................15
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.................15
SECTION 302. Denominations........................................18
</TABLE>
ii
<PAGE>
<TABLE>
Page
----
<S> <C>
SECTION 303. Execution, Authentication, Delivery and Dating................. 18
SECTION 304. Temporary Securities........................................... 20
SECTION 305. Registration, Registration of Transfer and Exchange............ 21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............... 24
SECTION 307. Payment of Interest; Interest Rights Preserved................. 25
SECTION 308. Persons Deemed Owners.......................................... 26
SECTION 309. Cancellation................................................... 26
SECTION 310. Computation of Interest........................................ 27
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture........................ 27
SECTION 402. Application of Trust Money..................................... 28
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.............................................. 29
SECTION 502. Acceleration of Maturity; Rescission and Annulment............. 30
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee 31
SECTION 504. Trustee May File Proofs of Claim............................... 31
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.....32
SECTION 506. Application of Money Collected................................. 32
SECTION 507. Limitation on Suits............................................ 33
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium,
Interest and Additional Amounts................................ 33
SECTION 509. Restoration of Rights and Remedies............................. 33
SECTION 510. Rights and Remedies Cumulative................................. 34
SECTION 511. Delay or Omission Not Waiver................................... 34
SECTION 512. Control by Holders............................................. 34
SECTION 513. Waiver of Past Defaults........................................ 35
SECTION 514. Undertaking for Costs.......................................... 35
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities............................ 36
SECTION 602. Notice of Defaults............................................. 37
SECTION 603. Certain Rights of Trustee...................................... 37
SECTION 604. Not Responsible for Recitals or Issuance of Securities......... 38
SECTION 605. May Hold Securities............................................ 38
SECTION 606. Money Held in Trust............................................ 38
SECTION 607. Compensation and Reimbursement................................. 38
SECTION 608. Disqualification; Conflicting Interests........................ 39
SECTION 609. Corporate Trustee Required; Eligibility........................ 39
SECTION 610. Resignation and Removal; Appointment of Successor.............. 40
SECTION 611. Acceptance of Appointment by Successor......................... 41
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.... 42
SECTION 613. Preferential Collection of Claims Against Company.............. 42
SECTION 614. Appointment of Authenticating Agent............................ 42
</TABLE>
iii
<PAGE>
<TABLE>
Page
----
<S> <C>
SECTION 615. Other Capacities........................................... 44
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.. 44
SECTION 702. Preservation of Information; Communications to Holders..... 44
SECTION 703. Reports by Trustee......................................... 45
SECTION 704. Reports by Company......................................... 45
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms...... 46
SECTION 802. Successor Corporation Substituted......................... 46
SECTION 803. Officers' Certificate and Opinion of Counsel.............. 47
ARTICLE NINE
SUPPLEMENTAL INDENTURE
SECTION 901. Supplemental Indentures Without Consent of Holders........ 47
SECTION 902. Supplemental Indentures with Consent of Holders........... 48
SECTION 903. Execution of Supplemental Indentures...................... 49
SECTION 904. Effect of Supplemental Indentures......................... 50
SECTION 905. Conformity with Trust Indenture Act....................... 50
SECTION 906. Reference in Securities to Supplemental Indentures........ 50
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest................. 50
SECTION 1002. Maintenance of Office or Agency............................ 50
SECTION 1003. Money for Securities Payments to Be Held in Trust.......... 51
SECTION 1004. Additional Amounts......................................... 53
SECTION 1005. Corporate Existence........................................ 53
SECTION 1006. Payment of Taxes and Other Claims.......................... 53
SECTION 1007. Limitation on Liens........................................ 54
SECTION 1008. Statement by Officers as to Default........................ 55
SECTION 1009. Limitations on Incurrence of Obligations for Borrowed Money 55
SECTION 1010. Waiver of Certain Covenants................................ 56
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.................................. 56
SECTION 1102. Election to Redeem; Notice to Trustee..................... 56
SECTION 1103. Selection by Trustee of Securities to Be Redeemed......... 56
SECTION 1104. Notice of Redemption...................................... 57
SECTION 1105. Deposit of Redemption Price............................... 58
SECTION 1106. Securities Payable on Redemption Date..................... 58
SECTION 1107. Securities Redeemed in Part............................... 59
</TABLE>
iv
<PAGE>
<TABLE>
Page
----
<S> <C>
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article............................... 59
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.. 60
SECTION 1203. Redemption of Securities for Sinking Fund.............. 60
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance...................... 60
SECTION 1302. Defeasance and Discharge............................... 61
SECTION 1303. Covenant Defeasance.................................... 61
SECTION 1304. Conditions to Defeasance or Covenant Defeasan.......... 61
SECTION 1305. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.......... 63
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1401. Applicability of Article............................... 64
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called............ 64
SECTION 1502. Call, Notice and Place of Meetings................... 64
SECTION 1503. Persons Entitled to Vote at Meetings................. 65
SECTION 1504. Quorum; Action....................................... 65
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.............................. 66
SECTION 1506. Counting Votes and Recording Action of Meetings...... 67
ARTICLE SIXTEEN
SECURITIES IN FOREIGN CURRENCIES
SECTION 1601. Applicability of Article............................. 67
</TABLE>
v
<PAGE>
INDENTURE, dated as of August 19, 1997, from NATIONWIDE HEALTH PROPERTIES,
INC., a corporation duly organized and existing under the laws of the State of
Maryland (the "Company"), to The Bank of New York, a corporation duly organized
and existing under the laws of the State of New York, as Trustee.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
unsubordinated debentures, notes or other evidences of indebtedness (the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided. All things
necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as defined below) thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities and any
Coupons (as defined below), as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
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For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) 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 in the United States at the date of such
computation;
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(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(5) the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both", not either "A or B but not both"); and
(6) nouns and pronouns of the masculine gender include the feminine
gender.
Certain terms, used principally in Articles Six and Ten, are defined
in those Articles.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes imposed on Holders specified
therein 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 of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication, or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are legal holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or
any committee of that board duly authorized to act generally or in any
particular respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions 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," when used with respect to any Place of Payment or
other location, means each Monday, Tuesday, Wednesday, Thursday or Friday that
is not a Legal Holiday in any such Place of Payment or other location.
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"Capital Base" means, at any date, the sum of Tangible Net Worth and
Subordinated Debt.
"Capital Lease" means at any time any lease of Property which, in
accordance with generally accepted accounting principles, would at such time be
required to be capitalized on a balance sheet of the lessee.
"Capital Lease Obligation" means at any time the amount of the
liability in respect of a Capital Lease which, in accordance with generally
accepted accounting principles, would at such time be required to be capitalized
on a balance sheet of the lessee.
"Capital Stock," as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless of
whether such capital stock shall be limited to a fixed sum or percentage with
respect to the rights of the holders thereof to participate in dividends and in
the distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act 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.
"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 and any other obligor upon the
Securities.
"Company Request" and "Company Order" mean, respectively, 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.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) less (i)
all current liabilities and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expenses and other like intangibles of the Company
and its consolidated Subsidiaries, all as set forth on the most recent balance
sheet of the Company and its consolidated Subsidiaries and prepared in
accordance with generally accepted accounting principles.
"Corporate Trust Office" means an office of the Trustee in the City
and State of New York at which at any particular time its corporate trust
business shall be principally conducted, which office, at the date of execution
of this Indenture, is located at 101 Barclay Street, 21st Floor, New York, New
York 10286.
"corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"covenant defeasance" has the meaning specified in Section 1303.
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"Currency" or "Money", with respect to any payment, deposit or other
transfer in respect of the principal of or any premium or interest on or any
Additional Amounts with respect to any Security, means the unit or units of
legal tender for the payment of public and private debts (or any composite
thereof) in which such payment, deposit or other transfer is required to be made
by or pursuant to the terms hereof and, with respect to any other payment,
deposit or transfer pursuant to or contemplated by the terms hereof, means
Dollars.
"Debt", when used with respect to any Person means (i) its
indebtedness, secured or unsecured, for borrowed money; (ii) liabilities secured
by any Lien existing on Property owned by such Person; (iii) Capital Lease
Obligations, and the present value of all payments due under any arrangement for
retention of title (discounted at a rate per annum equal to the average interest
borne by all outstanding Securities determined on a weighted average basis and
compounded semi-annually) if such arrangement is in substance an installment
purchase or an arrangement for the retention of title for security purposes; and
(iv) guarantees of obligations of the character specified in the foregoing
clauses (i), (ii) and (iii) to the full extent of the liability of the guarantor
(discounted to the present value, as provided in the foregoing clause (iii), in
the case of guarantees of title retention arrangements).
"Defaulted Interest" has the meaning specified in Section 307.
"defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301, which person, if required by applicable law, regulation or exchange
requirement, must be a clearing agency registered under the Exchange Act and if
so provided with respect to any Security, any successor to such Person and if at
any time there is more than one such Person, "Depositary" as used with respect
to the Securities of any series shall mean the Depositary with respect to the
Securities of such series.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Security" means a Security in the form prescribed in Section
203 evidencing all or part of a series of Securities, issued to the Depositary
for such series or its nominee, and registered in the name of such Depositary or
its nominee.
"Holder", in the case of any Registered Security, means a Person in
whose name a Security is registered in the Security Register and, in the case of
any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities and any Coupon
appertaining thereto established as contemplated by Section 301.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
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"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Legal Holiday", with respect to any Place of Payment or other
location, means a Saturday, a Sunday or a day on which banking institutions or
trust companies in such Place of Payment or other location are not obligated to
be open.
"Liabilities" means, at any date, the items shown as liabilities on
the balance sheet of the Company, except any items of deferred income, including
capital gains.
"Lien" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract, and including but not
limited to the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt or a lease, consignment or bailment
for security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and all other title exceptions and encumbrances affecting Property. For
all purposes of this Indenture, the Company shall be deemed to be the owner of
any Property which it has acquired or holds subject to a conditional sale
agreement, Capital Lease or other arrangement pursuant to which title to the
Property has been retained by or vested in some other Person for security
purposes.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, notice of option to elect
repayment or otherwise and includes any Redemption Date.
"Non-Recourse Debt" when used with respect to any Person, means any
Debt secured by, and only by, property on or with respect to which such Debt is
incurred where the rights and remedies of the holder of such Debt in the event
of default do not extend to assets other than the property constituting security
therefore.
"Office or Agency", with respect to any Securities, means an office or
agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"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, that
complies with the requirements of Section 314(e) of the Trust Indenture Act and
is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for, or an employee of, the Company, that complies with the requirements
of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal face 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:
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(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities or portions thereof for whose payment at the Maturity
thereof 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 and any Coupons
appertaining thereto; provided that, if such Securities are to be redeemed,
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notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities which have been defeased pursuant to Section 1302;
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 Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes 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 pursuant to
Section 502, (ii) the principal amount of a Security denominated in a foreign
currency or currency unit that may be counted in making such determination and
that shall be deemed Outstanding for such purpose shall be the U.S. dollar
equivalent, determined by the Company in good faith as of the date of original
issuance of such Security, of the principal amount of such Security (or, in the
case of an Original Issue Discount Security, the U.S. dollar equivalent,
determined by the Company in good faith as of the date of original issuance of
such Security, of the amount determined as provided in (i) above), and (iii)
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 making any such determination or relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee knows according to the
Security Register 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 Coupons appertaining thereto 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, or any Additional Amounts
with respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (or premium, if any) or
interest on, or any Additional
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Amounts with respect to, such Securities of that series are payable as specified
in or as contemplated by this Indenture.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or any Security to which a
mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which a mutilated, destroyed, lost or stolen Coupon appertains.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible.
"Redemption Date," when used with respect to any Security or portion
thereof 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 or portion
thereof to be redeemed, means the price at which it is to be redeemed as
determined by or pursuant to this Indenture.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered
Security of any series on any Interest Payment Date therefor means the date
specified for that purpose as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means
any Vice President, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer who, in each case, is employed in the
administration of the Trustee's corporate trust business, 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 or her 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 Debt" means all Debt other than Non-Recourse Debt and
Subordinated Debt.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon or any Additional Amounts
with respect thereto, means the date specified in such Security as the fixed
date on which the principal of such Security or such instalment of principal or
interest or such Additional Amounts is due and payable.
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"Subordinated Debt" means unsecured Debt of the Company which is
issued or assumed pursuant to, or evidenced by, an indenture or other instrument
which contains provisions for the subordination of such Debt (to which
appropriate reference shall be made in the instruments evidencing such Debt if
not contained therein) to the Securities (and, at the option of the Company, if
so provided, to other Debt of the Company, either generally or as specifically
designated).
"Subsidiary" means a corporation, partnership, limited liability
company or trust 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.
"Tangible Assets" means all assets of the Company (including assets
held subject to Capital Leases and other arrangements described in the last
sentence of the definition of "Lien") except: (i) deferred assets, other than
prepaid insurance, prepaid taxes and deposits; (ii) patents, copyrights,
trademarks, trade names, franchises, goodwill, experimental expense and other
similar intangibles; and (iii) unamortized debt discount and expense.
"Tangible Net Worth" means, with respect to the Company at any date,
the net book value (after deducting related depreciation, obsolescence,
amortization, valuation and other proper reserves) of the Tangible Assets of the
Company at such date minus the amount of its Liabilities at such date.
"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 the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof means such act or provision, as the case may be, as amended or
replaced from time to time or as supplemented from time to time by rules or
regulations adopted by the Commission under or in furtherance of the purposes of
such act or provision, as the case may be.
"United States Alien", except as otherwise provided in or pursuant to
this Indenture, means any Person who for United States federal income tax
purposes, is a foreign corporation, a non-resident alien individual, a non-
resident alien fiduciary of a foreign estate or trust, or a foreign partnership
one or more of the members of which is, for United States federal income tax
purposes, a foreign corporation, a non-resident alien individual or a non-
resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" has the meaning specified in Section
1304(1).
"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."
"Voting Stock" means stock or other interests evidencing ownership in
a corporation, partnership, limited liability company or trust which ordinarily
has voting power for the election of directors, or other persons performing
equivalent functions, whether at all times or only so long as no senior class of
stock has such voting power by reason of any contingency.
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SECTION 102. Compliance Certificates and Opinions.
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Except as otherwise expressly provided by this Indenture, 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
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, including any request to
authenticate and deliver Securities of any series pursuant to Section 303, 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, other than certificates
provided pursuant to Section 704(4), shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
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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
Counsel, 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 or her certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel or
representations by 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.
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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.
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(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to 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. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
Without limiting the generality of this Section, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depositary that
is a Holder of a global Security, may make, give or take, by a proxy, or
proxies, duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or taken by Holders, and a Depositary that is a
Holder of a global Security may provide for the beneficial owners of interests
in any such global Security to direct such Depositary in taking such action
through such Depositary's standing instructions and customary practices. The
Depositary shall report only one result of its solicitation of proxies to the
Trustee.
(2) 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 acknowledgments 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 or her
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her 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.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the
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Company, wherever situated, if such certificate shall be deemed by the Company
and the Trustee to be satisfactory, showing that at the date therein mentioned
such Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Company to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing and the
date of the commencement and the date of the termination of holding the same may
also be proved in any other manner which the Company and the Trustee deem
sufficient.
(5) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company shall, by Board Resolution, fix in advance a
record date for the determination of Holders of Registered Securities entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act. Such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the
Holders of Registered Securities of record at the close of business on such
record date shall be deemed to be Holders for the purpose of determining whether
Holders of the requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided that no such authorization,
agreement or consent by the Holders of Registered Securities shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
(6) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent or the Company in reliance thereon, whether
or not notation of such action is made upon such Security.
SECTION 105. Notices, Etc., 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,
(1) 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, or
(2) 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 Nationwide Health Properties, Inc., 610 Newport Center
Drive, Suite 1150, Newport Beach, California 92660, Attention: President,
or at any other address previously furnished in writing to the Trustee by
the Company.
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SECTION 106. Notice to Holders; Waiver.
-------------------------
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class mail postage prepaid, to
each Holder of a Registered Security affected by such event, at his or her
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; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York and, if such Securities are then listed on any stock exchange
outside the United States, in an Authorized Newspaper in such city as the
Company shall advise the Trustee that such stock exchange so requires, on a
Business Day at least twice, the first such publication to be not earlier
than the earliest date and not later than the latest date prescribed for
the giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. 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.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Language of Notices, etc.
-------------------------
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
SECTION 108. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
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SECTION 109. 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 110. 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 111. Separability Clause.
-------------------
In case any provision in this Indenture or in any Security or Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 112. Benefits of Indenture.
---------------------
Nothing in this Indenture or in any Security or Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder and the Holders of
Securities or Coupons, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 113. Governing Law.
-------------
This Indenture, the Securities and any Coupons shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 114. Legal Holidays.
--------------
In any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security shall be a Legal Holiday in The City of New York or at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or of any Security or Coupon other than a provision in this Indenture,
any Security or Coupon that specifically states that such provision shall apply
in lieu of this Section) payment of interest or principal (and premium, if any)
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day in The City of New York and at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or at the Stated Maturity or Maturity, provided that no interest, except as
--------
provided in Section 502(1)(c), if applicable, shall accrue for the period from
and after such Interest Payment Date, Stated Maturity or Maturity, as the case
may be. Notwithstanding the foregoing, in the event that any Interest Payment
Date relating to any Security whose interest rate is determined by reference to
LIBOR is not a Business Day and the next succeeding Business Day falls in the
next calendar month, such Interest Payment Date will be the last Business Day in
the preceding month.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
---------------
Each Registered Security, Bearer Security and Coupon shall be in
substantially the form (including temporary and permanent global form) as shall
be established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, and may have such letters,
numbers or other marks of identification 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 of the Company
executing such Securities or Coupons, as evidenced by their execution of such
Securities or Coupons. If the form of Securities of any series is 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 Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery of
such Securities. If all of the Securities of any series established by action
taken pursuant to a Board Resolution are not to be issued at one time, it shall
not be necessary to deliver a record of such action at the time of issuance of
each Security of such series, but an appropriate record of such action shall be
delivered at or before the time of issuance of the first Security of such
series.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, the Securities of each series shall be issuable in
registered form without Coupons. If so provided as contemplated by Section 301,
the Securities of a series also shall be issuable in bearer form, with or
without interest Coupons attached.
The definitive Securities and Coupons shall be printed, lithographed
or engraved or may be produced in any other manner, all as determined by the
officers of the Company executing such Securities or Coupons, as evidenced by
their execution of such Securities or Coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Subject to the provisions of Section 614 hereof, the Trustee's
certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By_______________________
Authorized Signatory
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SECTION 203. Provisions in Global Security.
-----------------------------
If Securities of a series are issuable in whole or in part in global
form, as specified in and as contemplated by Section 301, then, notwithstanding
the provisions of Sections 301 and 302, any such Security shall represent such
of the Outstanding Securities of such series as shall be specified therein and
may provide that it shall represent the aggregate principal amount of
Outstanding Securities from time to time endorsed thereon and that the aggregate
principal amount of Outstanding Securities represented thereby may from time to
time be increased or reduced to reflect exchanges and payments of principal.
The global form may be permanent or temporary. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the principal
amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or Section 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been or simultaneously is delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102.
Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
Notwithstanding the provisions of Section 307 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a Global Security as shall be
specified in a written statement of the Depositary with respect to such Global
Security, for purposes of obtaining any consents or directions required to be
given by the Holders pursuant to this Indenture.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. With respect to
any Securities to be authenticated and delivered hereunder, 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 and the series (which shall
distinguish the Securities of the series from all other Securities);
(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
15
<PAGE>
authenticated and delivered upon registration or transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, shall not have been issued and sold by the Company
and are therefore deemed never to have been authenticated and delivered
hereunder);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without Coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities
and the terms upon which Bearer Securities of the series may be exchanged
for Registered Securities of the series and vice versa;
(4) if any of such Securities are to be issuable in global form, when
any of such Securities are to be issuable in global form and (i) whether
beneficial owners of interests in any such Global Security may exchange
such interests for Securities of the same series and of like tenor and of
any authorized form and denomination, and the circumstances under which any
such exchange may occur, if other than in the manner specified in Section
305, and (ii) the name of the Depositary with respect to any Global
Security;
(5) the date as of which any Bearer Securities of the series and any
temporary Global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(6) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form (representing all of the Outstanding Bearer
Securities of the series) payable on an Interest Payment Date prior to the
exchange of such temporary Bearer Security for definitive Securities of the
series shall be paid to any clearing organization with respect to the
portion of such temporary Bearer Security held for its account and, in such
event, the terms and conditions (including any certification requirements)
upon which any such interest payment received by a clearing organization
will be credited to the Persons entitled to interest payable on such
Interest Payment Date;
(7) the Person to whom any interest on a Security of the series shall
be payable at Maturity, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest;
(8) the date or dates (or the method or methods, if any, by which such
date or dates shall be determined) on which the principal (and premium, if
any) of the Securities of the series is payable;
(9) the rate or rates (or the formula pursuant to which such rate or
rates shall be determined) at which the Securities of the series shall bear
interest, if any, including the rate of interest applicable on overdue
payments of principal or interest, if different from the rate of interest
stated in the Security; the date or dates from which such interest shall
accrue (or the method or methods, if any, by which such date or dates shall
be determined), the Interest Payment Dates, if any, on which such interest
shall be payable and the Regular Record Date, if any, for the interest
payable on Registered Securities on any Interest Payment Date; whether and
under what circumstances Additional Amounts on such Securities shall be
payable in respect of specified taxes, assessments or other governmental
charges withheld or deducted and, if so, whether the Company has the option
to redeem the affected Securities rather than pay such Additional Amounts;
and the basis upon which interest shall be calculated if other than that of
a 360-day year of twelve 30-day months;
16
<PAGE>
(10) if in addition to or other than the Borough of Manhattan, The
City of New York, the place or places where the principal of, any premium
and interest on or any Additional Amounts with respect to such Securities
shall be payable, any of such Securities that are Registered Securities may
be surrendered for registration of transfer, any of such Securities may be
surrendered for exchange and notices or demands to or upon the Company in
respect of such Securities and this Indenture may be served;
(11) if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the Company;
(12) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which Securities of the series shall be redeemed or purchased, in
whole or in part, pursuant to such obligation;
(13) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(14) the currency or currencies, including composite currencies, in
which payment of the principal of (and premium, if any) and interest, if
any, on or any Additional Amounts with respect to, the Securities of the
series shall be payable if other than the currency of the United States,
which may be different for principal, premium, if any, and interest;
(15) if the principal of (and premium, if any) or interest, if any, on
or any Additional Amounts with respect to, the Securities of the series are
to be payable, at the election of the Company or a Holder thereof or
otherwise, in a Currency or Currencies other than that in which the
Securities are stated to be payable, the Currency or Currencies in which
payment of the principal of (and premium, if any) or interest on or any
Additional Amounts with respect to Securities of such series as to which
such election is made shall be payable, and the period or periods within
which, and the terms and conditions upon which, such election may be made;
(16) if the amount of payments of principal of (and premium, if any)
or interest, if any, on or any Additional Amounts with respect to, the
Securities of the series may be determined with reference to an index,
formula or other method or methods, the manner in which such amounts shall
be determined;
(17) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
(18) any Event of Default or covenant of the Company with respect to
the Securities of the series, if not set forth herein;
(19) whether either or both of Section 1302 and Section 1303 shall not
apply to the Securities of the series;
(20) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities, which Depositary shall
be, if then required by applicable law or
17
<PAGE>
regulation, a clearing agency registered under the Securities Exchange Act
of 1934, as amended;
(21) any other terms of the series, including the covenants to be
applicable to Securities of such series (which terms shall not be
inconsistent with the provisions of this Indenture); and
(22) if not the Trustee, the identity of each Security Registrar,
Paying Agent or Authenticating Agent with respect to such Securities.
All Securities of any one series and Coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as to
Currency of payments due thereunder, denomination and rate or rates of interest,
if any, the method or methods, if any, by which such rate or rates are to be
determined and Maturity, the date from which interest, if any shall accrue and
except as may otherwise be provided in or pursuant to the Board Resolution
referred to above and (subject to Section 303) set forth in the Officers'
Certificate referred to above or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at one time and, unless
otherwise provided, a series may be reopened for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series. If all of the
Securities of any series established by action taken pursuant to a Board
Resolution are not to be issued at one time, it shall not be necessary to
deliver a record of such action at the time of issuance of each Security of such
series, but an appropriate record of such action shall be delivered at or before
the time of issuance of the first Security of such series.
SECTION 302. Denominations.
-------------
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless other
denominations and amounts may from time to time be fixed by or pursuant to a
Board Resolution, the Registered Securities of each series, if any, shall be
issuable in registered form without Coupons in denominations of $1,000 and any
integral multiple thereof, and the Bearer Securities of each series, if any,
shall be issuable in the denomination of $5,000, or in such other denominations
and amounts as may from time to time be fixed by or pursuant to a Board
Resolution. Securities not denominated in Dollars shall be issuable in such
denominations as are established with respect to such Securities as provided in
or pursuant to this Indenture.
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. Coupons shall bear the signature of the Treasurer or any
Assistant Treasurer of the Company. The signature of any of these officers on
the Securities or the Coupons may be manual or facsimile.
Securities and Coupons 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.
18
<PAGE>
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any Coupons appertaining thereto, executed by the Company to the Trustee for
authentication, and, provided that the Board Resolution and Officers'
Certificate with respect to such Securities referred to in Section 301 and a
Company Order for the authentication and delivery of such Securities has been
delivered to the Trustee, the Trustee in accordance with the Company Order and
subject to the provisions hereof and of such Securities shall authenticate and
make available for delivery such Securities. If all of the Securities of any
series are not to be issued at one time and if the Board Resolution or
supplemental indenture establishing such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of
such Securities and determining the terms of particular Securities of such
series, such as interest rate, maturity date, date of issuance and date from
which interest shall accrue. In authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon
(1) an Opinion of Counsel stating,
(a) if the form of such Securities and Coupons, if any, has been
established by or pursuant to a Board Resolution as permitted by Section
201, that such form has been established in conformity with the provisions
of this Indenture;
(b) if the terms of such Securities and Coupons, if any, have been
established by or pursuant to a Board Resolution as permitted by Section
301, that such terms have been established in conformity with the
provisions of this Indenture;
(c) all conditions precedent to the authentication and delivery of
such Securities and Coupons, if any, appertaining thereto, have been
complied with and that such Securities together with the Coupons, if any,
appertaining thereto, 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 and paid for, will be legally valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights
generally (including, without limitation, fraudulent conveyance laws), and
except that such counsel may advise that the enforceability of the
Securities and Coupons is subject to: (a) the effect of general principles
of equity including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability
of specific performance, injunctive relief, or other equitable remedies
regardless of whether considered in a proceeding in law or at equity, and,
if applicable, (b) provisions of law which may require that a judgment for
money damages rendered by a court in the United States be expressed in
United States dollars;
(d) all laws and requirements in respect of the execution and
delivery by the Company of such Securities and Coupons, if any, have been
complied with; and
(e) as to such other matters as the Trustee may reasonably request;
and
(2) an Officers' Certificate stating that all conditions precedent to the
authentication and delivery of such Securities and Coupons, if any, appertaining
thereto, have been complied with and to the best knowledge of the Persons
executing such certificate, no event which is, or after notice or lapse of time
would become, an Event of Default with respect to any of the Securities has
occurred and is continuing.
19
<PAGE>
If such forms 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 reasonably 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 time of authentication upon original issuance of
the first Security of such series to be issued.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any temporary Bearer Security in
global form shall be dated as of the date specified as contemplated by Section
301.
No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by or on behalf of the Trustee by manual
signature of one of its authorized signatories or by the Authenticating Agent,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section 309
together with a written statement (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture. Except
as permitted by Section 306 or 307, the Trustee shall not authenticate and
deliver any Bearer Security unless all appurtenant Coupons for interest then
matured have been detached and cancelled.
SECTION 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
reproduced or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued, in
registered form, or if authorized, in bearer form with one or more Coupons or
without Coupons and with such appropriate insertions, omissions, substitutions
and other variations as the officers of the Company executing such Securities
may determine, as conclusively evidenced by their execution of such Securities.
Such temporary Securities may be in global form.
Except in the case of temporary Securities issued in global form,
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured Coupons appertaining thereto) the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, in exchange therefor a like principal amount of definitive Securities
of the same series and tenor of
20
<PAGE>
authorized denominations; provided, however, that no definitive Bearer Security,
except as provided pursuant to Section 301, shall be delivered in exchange for a
temporary Registered Security; and, provided, further, that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth herein. Unless otherwise provided in
or pursuant to this Indenture with respect to a temporary Global Security, until
so exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
With respect to the Registered Securities of each series, 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 of
the Company in a Place of Payment being herein sometimes 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 the Registered
Securities of such series and of transfers and exchanges of the Registered
Securities of such series. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering the Registered Securities and transfers of the
Registered Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series, of any authorized denominations,
of a like tenor and aggregate principal amount and bearing a number not
contemporaneously outstanding.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series, of any
authorized denominations and of a like tenor and aggregate principal amount,
upon surrender of the Securities to be exchanged at such office or agency.
Whenever any Registered Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Registered Securities which the Holder making the exchange is
entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities of such series containing
identical terms, denominated as authorized in or pursuant to this Indenture and
in the same aggregate principal amount, upon surrender of the Bearer Securities
to be exchanged at any Office or Agency in a Place of Payment for such series,
with all unmatured Coupons and all matured Coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured Coupon or Coupons or matured Coupon or Coupons in default, such
exchange may be effected if the Bearer Securities are accompanied by payment in
funds acceptable to the Company and the Trustee in an amount equal to the face
amount of such missing Coupon or Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there is
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to any Paying Agent any such missing Coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as otherwise
provided in Section 1002, interest represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an Office or Agency for such
series in a Place of Payment located outside the United States. Notwithstanding
the foregoing, in case a Bearer Security of any series is surrendered at any
such Office or Agency for such series in exchange for a Registered Security of
such series and like tenor after the close of business at such Office or Agency
on (i) any Regular Record Date and
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before the opening of business at such Office or Agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such Office or Agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be (or, if
such Coupon is so surrendered with such Bearer Security, such Coupon shall be
returned to the Person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, shall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to
Securities of any series, at the option of the Holder, Registered Securities of
such series may be exchanged at an Office or Agency located outside of the
United States for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated
by the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any Global Security shall be exchangeable for
definitive Securities only if (i) the Depositary is at any time unwilling,
unable or ineligible to continue as Depositary and a successor depositary is not
appointed by the Company within 60 days of the date the Company is so informed
in writing, (ii) the Company executes and delivers to the Trustee a Company
Order to the effect that such Global Security shall be so exchangeable, or (iii)
an Event of Default has occurred and is continuing with respect to the
Securities of that series. If the beneficial owners of interests in a Global
Security are entitled to exchange such interests for definitive Securities, then
without unnecessary delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in such form and denominations as are required by
or pursuant to this Indenture, and of the same series, containing identical
terms and in aggregate principal amount equal to the principal amount of, such
Global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such Global Security shall be surrendered
from time to time by the Depositary as shall be specified in the Company Order
with respect thereto, and in accordance with instructions given to the Trustee
and the Depositary (which instructions shall be in writing but need not be
contained in or accompanied by an Officers' Certificate or be accompanied by an
Opinion of Counsel), as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities as described above
without charge. The Trustee shall authenticate and make available for delivery,
in exchange for each portion of such surrendered Global Security, a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such Global
Security to be exchanged, which (unless such Securities are not issuable both as
Bearer Securities and as Registered Securities, in which case the definitive
Securities exchanged for the Global Security shall be issuable only in the form
in which the Securities are issuable, as provided in or pursuant to this
Indenture) shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the Depository; provided,
---------
however, that no such exchanges may occur during a period beginning at the
- --------
opening of business 15 days before any selection of Securities of the same
series and containing identical terms to be redeemed and ending on the relevant
Redemption Date; and provided, further, that (unless otherwise provided in or
pursuant to this Indenture) no Bearer Security delivered in exchange for a
portion of a Global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part,
such Global Security shall be returned by the Trustee to such
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Depositary referred to above in accordance with the instructions of the Company
referred to above. If a Registered Security is issued in exchange for any
portion of a Global Security after the close of business at the office or agency
in the Place of Payment for such Security where such exchange occurs on or after
(i) any Regular Record Date for such Security and before the opening of business
at such office or agency on the next Interest Payment Date, or (ii) any Special
Record Date for such Security and before the opening of business at such office
or agency on the related proposed date for payment of interest or Defaulted
Interest, as the case may be, interest shall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but shall be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such Global Security shall be payable in
accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitling the Holders thereof to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge to the Holder shall be made for any registration of
transfer or exchange, or redemption 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 Section 304, 906 or 1107 not
involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, 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
any selection for redemption of Securities of like tenor and of the series of
which such Security is a part and ending at the close of business on the
earliest date on which the relevant notice of redemption is deemed to have been
given to all Holders of Securities of such series to be redeemed, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part, or (iii) to exchange any Bearer Security so selected for
redemption except, to the extent provided with respect to such Bearer Security,
that such Bearer Security may be exchanged for a Registered Security of like
tenor and the same series, provided that such Registered Security shall be
immediately surrendered for redemption with written instruction for payment
consistent with the provisions of this Indenture or (iv) to issue, register the
transfer of or exchange any Security which, in accordance with its terms, has
been surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such Global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive form and
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
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Notwithstanding any other provision in this Indenture, a Global
Security may not be transferred except as a whole by the Depositary with respect
to such Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary. Unless
otherwise provided as contemplated by Section 301 with respect to any series of
Securities evidenced in whole or in part by a Global Security, the Depositary
may not sell, assign, transfer or otherwise convey any beneficial interest in a
Global Security evidencing all or part of the Securities of such series unless
such beneficial interest is in an amount equal to an authorized denomination for
Securities of such series.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security, or a Security with a mutilated Coupon
appertaining to it, is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding with Coupons appertaining thereto
corresponding to the Coupons, if any, appertaining to the surrendered Security.
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
or Coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or Coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and make available for delivery, in lieu
of any such destroyed, lost or stolen Security, or in exchange for the Security
to which a destroyed, lost or stolen Coupon appertains with all appurtenant
Coupons not destroyed, lost or stolen, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding, with Coupons corresponding to the Coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen Coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
Coupon 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 or Coupon;
provided, however, that payment of principal of, any premium or interest on or
any Additional Amounts with respect to any Bearer Securities shall, except as
otherwise provided in Section 1002, be payable only at an Office or Agency at a
Place of Payment for such Securities located outside the United States and,
unless otherwise provided in or pursuant to this Indenture, any interest on
Bearer Securities and any Additional Amounts with respect to such interest shall
be payable only upon presentation and surrender of the Coupons appertaining
thereto.
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, with any Coupons appertaining thereto issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Company, whether or not
the destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or Coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on and any Additional Amounts with respect
to any Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid by check mailed by
first class mail 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. In case a Bearer Security of any series is
surrendered in exchange for a Registered Security of such series after the close
of business (at an Office or Agency in a Place of Payment for such series) on
any Regular Record Date and before the opening of business (at such Office or
Agency) on the next succeeding Interest Payment Date, such Bearer Security shall
be surrendered without the Coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
Any interest on and any Additional Amounts with respect to any
Registered Security of any series which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date for such Registered Security
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Person or Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such series and
the date of the proposed payment, 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 not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the 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 of Registered Securities of such series at his or her
address as it appears in the Security Register, not less than 10 days prior
to such Special Record Date. The Trustee may, in its discretion, in the
name and at the expense of the Company cause a similar notice to be
published at least once in an Authorized Newspaper of general circulation
in The City of New York, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor
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<PAGE>
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of payment for such series in exchange for a Registered
Security of such series after the close of business at such office or
agency on any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the Coupon
relating to such proposed date of payment and Defaulted Interest will not
be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the 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 and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Sections 305 and 307) interest on and any
Additional Amounts with respect to such Registered Security and for all other
purposes whatsoever, whether or not any payment with respect to such Registered
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.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon 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.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Depositary or impair, as between a
Depositary and beneficial owners of interests in any Global Security, the
operation of customary practices governing the exercise of the rights of the
Depositary as Holder of such Global Security.
SECTION 309. Cancellation.
------------
All Securities and Coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and Coupons, as
26
<PAGE>
well as Securities and Coupons surrendered directly to the Trustee for any such
purpose, shall be promptly cancelled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities and Coupons previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities and Coupons previously
authenticated hereunder which the Company has not issued and sold, and all
Securities and Coupons so delivered shall be promptly cancelled by the Trustee.
No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities and Coupons held by the Trustee
shall be returned to the Company upon the written request of 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 of each series 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 with respect to any series of Securities specified in such Company
Request (except as otherwise specifically provided herein and as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for and any rights to receive Additional Amounts) and any
Coupons appertaining thereto, and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series, when
(1) either
(a) all Securities of such series and all Coupons appertaining
thereto, theretofore authenticated and delivered (other than (i)
Coupons appertaining to Bearer Securities of such series surrendered
for exchange for Registered Securities of such series and maturing
after such exchange, whose surrender is not required or has been
waived as provided in Section 305, (ii) Securities and Coupons of such
series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, (iii) Coupons
appertaining to Securities of such series called for redemption and
maturing after the relevant Redemption Date, whose surrender has been
waived as provided in Section 1106 and (iv) Securities and Coupons of
such series for whose payment Money has theretofore been deposited in
trust or segregated and held in trust by the 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 Securities of such series and, in the case of clause (i)
or (ii) below, any Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
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<PAGE>
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities and Coupons
appertaining thereto not theretofore delivered to the Trustee for
cancellation, including the principal thereof (and premium, if any)
and interest thereon, and any Additional Amounts with respect thereto,
to the date of such deposit (in the case of Securities which have
become due and payable) or to the Maturity thereof, as the case may
be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) 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 as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 607, and, if Money shall have been deposited with the
Trustee pursuant to subclause (b) of Clause (1) of this Section, the rights,
powers, protections, trusts, duties and indemnities of the Trustee hereunder,
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003, and the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive.
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, the
Coupons 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, if any) and interest and Additional Amounts for whose payment such
Money has been deposited with the Trustee; but such Money need not be segregated
from other funds except to the extent required by law.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest on or any Additional
Amounts payable with respect to any Security of that series when such
interest or Additional Amounts become due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when, as and
if due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture or any Security of that series (other than
a covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of
Securities other than that series), 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 of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (a) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (b) a decree or order adjudging the
Company as bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by
29
<PAGE>
it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
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) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the Money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of not less than a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(a) all overdue interest on and any Additional Amounts payable
with respect to all Securities of that series and any Coupons
appertaining thereto,
(b) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon and any Additional Amounts with
respect thereto at the rate or rates prescribed therefor in such
Securities,
(c) to the extent that payment of such interest or Additional
Amounts is lawful, interest upon overdue interest and Additional
Amounts at the rate or rates prescribed therefor in such Securities,
and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of, any premium and interest on,
and any Additional Amounts with respect to Securities of that series which
have become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 513.
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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 or any
Additional Amounts payable with respect to any Security or any Coupon
appertaining thereto when such interest or Additional Amounts shall have
become 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, if
any, on) any Security at the Maturity thereof,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and Coupons appertaining thereto, the
whole amount then due and payable on such Securities and Coupons for principal,
including any sinking fund payment or analogous obligations (and premium, if
any) and interest and Additional Amounts, if any, and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest and Additional
Amounts, 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 amounts 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 such Securities and Coupons
appertaining thereto 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 such Securities and Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any Coupons appertaining thereto by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, 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, premium, interest or
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest, if any, and any Additional Amounts owing and
unpaid in respect of the
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Securities and any Coupons appertaining thereto and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders of Securities or any Coupons allowed in such
judicial proceeding, and
(2) to collect and receive any Moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, 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 of Securities
or any Coupons any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or Coupons or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of Securities or any Coupons in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
--------------------------------------------------------------
Coupons.
- -------
All rights of action and claims under this Indenture or the Securities
or Coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or Coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall be paid and applied as provided in Section 506.
SECTION 506. Application of Money Collected.
------------------------------
Any Money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such Money on account of principal (and premium,
if any), interest or any Additional Amounts, upon presentation of the Securities
or Coupons, or both, as the case may be, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on and any Additional
Amounts with respect to the Securities and Coupons 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 and Coupons for principal (and premium, if any)
and interest and any Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
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<PAGE>
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses (including the reasonable
compensation and expenses of legal counsel) and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other of such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium,
-------------------------------------------------------------
Interest and Additional Amounts.
-------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon, shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 305 and 307) interest on and any Additional Amounts with
respect to such Security or payment of such Coupon on the respective Stated
Maturity or Maturities therefor expressed in such Security or Coupon (or, in the
case of redemption, on the Redemption Date or, in the case of repayment at the
option of such Holder if provided in or pursuant to this Indenture, on the date
such repayment is due) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder 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.
33
<PAGE>
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders 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. To the
extent permitted by applicable law, 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.
----------------------------
To the extent permitted by applicable law, no delay or omission of the
Trustee or of any Holder of any Securities or Coupons 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.
------------------
Subject to the provisions of Sections 503, 601(3) and 603(5), the
Holders of not less than a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of such series;
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(3) such direction, in the reasonable judgment of the Trustee, is not
unduly prejudicial to the rights of other Holders of Securities of such
series.
Upon receipt by the Trustee of any purported direction with respect to
Securities of a series all or part of which is represented by a Global Security,
the Trustee shall establish a record date for determining Holders of Outstanding
Securities of such series entitled to join in such direction, which record date
shall be at the close of business on the day the Trustee receives such
direction. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such direction, whether or
not such Holders remain Holders after such record date; provided, that unless
--------
such majority in principal amount shall have been obtained prior to the day
which is 90 days after such record date, such direction shall automatically and
without further action by any Holder be cancelled and of no further effect.
Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from
giving, after expiration of such 90-day period, a new direction identical to a
direction which has been cancelled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 512.
34
<PAGE>
SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may, on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto, waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on or Additional Amounts payable in respect of any Security of
such series or any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any past default
hereunder. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have been
--------
obtained prior to the date which is 90 days after such record date, any such
waiver previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
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.
---------------------
All parties to this Indenture agree, and each Holder of any Security
or Coupon by his or her acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder or group of Holders holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on or any Additional Amounts in respect of any Security or
the payment of any Coupon on or after the respective Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date or, in the case of repayment at the option of such
Holder if provided in or pursuant to this Indenture, on the date such repayment
is due) or interest on any overdue principal of any Security or to the extent
permitted by law, the payment of interest on any Additional Amounts
35
<PAGE>
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
-----------------------------------
(1) Except during the continuance of an Event of Default,
(a) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture.
(2) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(3) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
------
(a) this Subsection shall not be construed to limit the effect of
Subsection (1) of this Section;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series, determined as provided in
Section 512, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture with
respect to the Securities of such series; and
(d) 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 reasonably assured to
it.
(4) 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
36
<PAGE>
shall be subject to the provisions of this Section. All references in this
Article Six to the Trustee shall be deemed to refer to the Trustee acting in its
capacities hereunder as Trustee, Paying Agent, Security Registrar and
Calculation Agent.
SECTION 602. Notice of Defaults.
------------------
Within 90 days after a Responsible Officer of the Trustee (1) obtains
actual knowledge of the occurrence of any default hereunder with respect to the
Securities of any series or (2) receives written notice of such default from the
Company or any other obligor on such Securities or by any Holder of such
securities, the Trustee shall transmit by mail to all Holders of Securities of
such series, as their names and addresses appear in the Security Register,
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
-------- -------
default in the payment of the principal of (or premium, if any) or interest on,
or any Additional Amounts with respect to, any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interests of the Holders of Securities
and Coupons of such series; and provided, further, that in the case of any
-------- -------
default of the character specified in Section 501(4) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
-------------------------
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act
and the provisions of Section 601:
(1) 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 in good faith to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(3) 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;
(4) the Trustee may consult with counsel and the oral or 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;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any Coupons
appertaining thereto pursuant to this Indenture,
37
<PAGE>
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;
(6) 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
(7) 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 herein and in the Securities, except the
Trustee's certificates of authentication, and in any Coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or Coupons except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein. Neither
the Trustee nor any Authenticating Agent shall 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 Coupons and, subject
to Sections 310(b) and 311 of the Trust Indenture Act and 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 and shall be held
uninvested. 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 such reasonable
compensation as shall be agreed to in writing between the Company and the
Trustee for all services rendered
38
<PAGE>
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 the Trustee's negligence
or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses
(including the reasonable compensation and the expenses and disbursements
of its agents and counsel) of investigating or defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest on or any Additional Amounts with respect to Securities or any
Coupons appertaining thereto.
Subject to any other rights available to the Trustee under any
applicable bankruptcy law, when the Trustee incurs expenses or renders services
after an Event of Default specified in clause (5) or (6) of Section 501 has
occurred, the parties hereto and the Holders, by acceptance of the Securities,
hereby agree that such expenses and compensation for services are intended to
constitute expenses of administration under any applicable bankruptcy law.
The provisions of this Section 607 shall survive any defeasance of the
Securities in accordance with Article Thirteen, the payment of the Securities,
and the resignation and removal of the Trustee in accordance with Section 610.
SECTION 608. Disqualification; Conflicting Interests.
---------------------------------------
The Trustee shall comply with the provisions of Section 310(b) of the
Trust Indenture Act, including the optional provision of Section 310(b)(9) of
the Trust Indenture Act, permitted by the second sentence thereof. Furthermore,
the conflict of interest provisions of Section 310(b)(1) of the Trust Indenture
Act regarding conflicts arising between different indentures shall also apply to
any conflicts arising between series of Securities issued under this indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall 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 exercise corporate trust powers, having a combined capital and surplus
of at least $10,000,000 subject to supervision or examination by Federal or
State authority. If such corporation 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. No
obligor upon the Securities or Person directly or indirectly controlling,
controlled by, or under common control
39
<PAGE>
with such obligor shall serve as Trustee upon the Securities. 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.
-------------------------------------------------
(1) 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.
(2) The Trustee may resign at any time with respect to the Securities
of one or more series 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 with respect to the
Securities of such series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(4) If at any time:
(a) 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
(b) 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
(c) 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 or pursuant to a Board Resolution may
remove the Trustee with respect to all Securities, or (ii) subject to Section
315(e) of the Trust Indenture Act and Section 514, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of such
Holder and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect of the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company
40
<PAGE>
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect to the
Securities of any series 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 of such series for at least
six months may, on behalf of himself or herself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(6) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
--------------------------------------
(1) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed 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 and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties hereunder of the retiring Trustee; but, on the
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, subject nevertheless
to its claim, if any, provided for in Section 607.
(2) 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 (a) 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, (b)
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
(c) 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 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
41
<PAGE>
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.
(3) 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 paragraph (1) or (2) of this Section, as the case may be.
(4) 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.
-------------------------------------------------
The Trustee is subject to Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 614. Appointment of Authenticating Agent.
-----------------------------------
At any time when any of the Securities of one or more series remain
outstanding, the Trustee may appoint an Authenticating Agent or Agents with
respect to Securities of one or more series which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series, and Securities
so authenticated shall be entitled to the benefits hereof and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made herein 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, 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 $10,000,000 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.
42
<PAGE>
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or 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 (i) mail notice of such
appointment by first class mail, postage prepaid to each Holder of Registered
Securities of the series, if any, with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register,
and (ii) if Securities of the series are issued as Bearer Securities, publish
notice of such appointment at least once in an Authorized Newspaper in the place
where such successor Authenticating Agent has its principal office if such
office is located outside the United States. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section. The
provisions of Section 607 shall also apply to any Authenticating Agent.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
The provisions of Sections 308, 604 and 605 shall be applicable to
each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
__________________________________
as Trustee
By ______________________________
as Authenticating Agent
By ______________________________
Authorized Signatory
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series
43
<PAGE>
authenticated upon original issuance, the Trustee, if so requested in writing
(which writing need not be accompanied by or contained in an Officers'
Certificate by the Company), shall appoint in accordance with this Section an
Authenticating Agent having an office in a Place of Payment designated by the
Company with respect to such series of Securities.
SECTION 615. Other Capacities.
----------------
Except as otherwise specifically provided herein, (i) all references
in this Indenture to the Trustee shall be deemed to refer to the Trustee in its
capacity as Trustee and in its capacities as Security Registrar and Paying Agent
and (ii) every provision of this Indenture relating to the conduct or affecting
the liability or offering protection, immunity or indemnity to the Trustee shall
be deemed to apply with the same force and effect to the Trustee acting in its
capacities as Paying Agent and Security Registrar.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
In accordance with Section 312(a) of the Trust Indenture Act, the
Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, either (a) not later than January 31 and July 31 in
each year in the case of Original Issue Discount Securities of any series
which by their terms do not bear interest prior to Maturity, or (b) not
more than 15 days after each Regular Record Date in the case of Registered
Securities of any other series, a list, each in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of the preceding January 16 or July
16 or as of such Regular Record Date, as the case may be; and
(2) at such other times as the Trustee may request in writing, within
30 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.
------------------------------------------------------
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, 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
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 312 of the Trust Indenture Act, regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under Section 312(b) of the Trust Indenture Act.
44
<PAGE>
SECTION 703. Reports by Trustee.
------------------
(1) Within 60 days after May 15 of each year commencing with the first
May 15 following the first issuance of Securities pursuant to Section 301, if
required by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report
dated as of such May 15 with respect to any of the events specified in said
Section 313(a) which may have occurred since the later of the immediately
preceding May 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(b)
of the Trust Indenture Act and Section 602 at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the
manner and to the persons required by Sections 313(c) and 313(d) of the Trust
Indenture Act.
(4) 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 any
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when any 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
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Section
313(c) of 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; and
(4) furnish to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, a brief
certificate from the principal executive officer, principal financial
officer or principal accounting officer of the Company as to his or
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<PAGE>
her knowledge of the Company's compliance with all conditions and covenants
under this Indenture. For purposes of this paragraph, such compliance
shall be determined without regard to any period of grace or requirement of
notice provided under this Indenture. A written statement satisfying the
requirements of Section 1008(a) of this Indenture will be deemed to satisfy
the requirements of this Section 704(4).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., 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, limited liability
company, partnership or trust, shall be 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, if any) and interest on and any Additional Amounts payable
with respect to, all the Securities and the performance of every covenant
of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to 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 occurred and be continuing; and
(3) subject to Sections 601 and 603, either the Company or the
successor Person 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 Corporation Substituted.
---------------------------------
Upon any consolidation by the Company with or merger by 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
46
<PAGE>
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 and Coupons.
SECTION 803. Officers' Certificate and Opinion of Counsel.
--------------------------------------------
The Trustee, subject to the provisions of Sections 601 and 603, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, lease or conveyance, and any
such assumption, complies with the provisions of this Article.
ARTICLE NINE
SUPPLEMENTAL INDENTURE
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or Coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities;
(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 change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
--------
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision;
(6) to secure the Securities;
(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
47
<PAGE>
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611;
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
--------
adversely affect the interests of the Holders of Securities of any series
or any Coupons appertaining thereto in any material respect;
(10) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the Trust Indenture Act or under any similar federal
statute hereafter enacted and to add to this Indenture such other
provisions as may be expressly required under the Trust Indenture Act;
(11) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of, any
premium or interest on or any Additional Amounts with respect to
Securities, to permit Registered Securities to be exchanged for Bearer
Securities, to permit Bearer Securities to be exchanged for Bearer
Securities of other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form, provided any such action
shall not adversely affect the interests of the Holders of Securities of
any series or any Coupons appertaining thereto in any material respect;
(12) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth;
(13) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Thirteen;
provided that any such action shall not adversely affect the interests of
any Holder of a Security of such series and any Coupons appertaining
thereto or any other Security or Coupon in any material respect; or
(14) to amend or supplement any provision contained herein or in any
supplemental indenture, provided that no such amendment or supplement shall
materially adversely affect the interests of the Holders of any Securities
then Outstanding.
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by or pursuant to a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series 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 any installment
of principal of or interest on or any Additional Amounts with respect to,
any Security, or reduce the principal amount thereof or the rate of
interest thereon or any Additional Amounts payable in respect thereof, or
any premium payable upon the redemption thereof
48
<PAGE>
or otherwise, or change the obligation of the Company to pay Additional
Amounts pursuant to Section 1004 (except as contemplated by Section 801(1)
and permitted by Section 901(1), or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or adversely affect any right of repayment at the option of the Holder
of any Security, or reduce the amount of, or postpone the date fixed for,
the payment of any sinking fund or analogous obligation, or change the
Place of Payment or coin or Currency in which any Security or any premium
or the interest thereon or any Additional Amounts with respect thereto 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 repayment at
the option of the Holder, on or after the date for repayment), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture or reduce the requirements of Section 1504 for quorum or voting,
or
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, 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 1009, or the
deletion of this proviso, in accordance with the requirements of Sections
611(2) 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.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
--------
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
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 315 of the Trust Indenture Act and Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee
49
<PAGE>
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any Coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series 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 for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of
(and premium, if any), interest on and any Additional Amounts payable with
respect to the Securities of that series in accordance with the terms of the
Securities, any Coupons appertaining thereto and this Indenture. Any principal
due on any Bearer Security shall be payable only upon presentation and surrender
of such Bearer Security and any interest due on and any Additional Amounts
payable with respect to Bearer Securities on or before Maturity, other than
Additional Amounts, if any, payable as provided in Section 1004 in respect of
principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several Coupons appertaining thereto for
such interest installments as are evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities (which Place of Payment shall include a location in the Borough of
Manhattan, The City of New York, State of New York) an Office or Agency where
Securities of that series (but not Bearer Securities, except as otherwise
provided below, unless such Place of Payment is located outside the United
States) may be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. If Securities
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of a series are issuable as Bearer Securities, the Company will maintain,
subject to any laws or regulations applicable thereto, an Office or Agency in a
Place of Payment for such series which is located outside the United States
where Securities of such series and any Coupons appertaining thereto may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Securities of such series pursuant to Section 1004);
provided, however, that if the Securities of such series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland or the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain a Paying Agent
in London, Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of such series are listed
on such exchange. 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 except that Bearer Securities of that
series and any Coupons appertaining thereto may be presented and surrendered for
payment (including payment of any Additional Amounts payable on Bearer
Securities of that series pursuant to Section 1004) at the place specified for
the purpose pursuant to Section 301, and the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, premium, interest or Additional Amounts on Bearer Securities shall be
made at any Office or Agency of the Company in the United States or by United
States Dollar check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, payment of principal of and any premium and interest in United States
dollars (including Additional Amounts payable in respect thereof) on any Bearer
Security may be made at the Corporate Trust Office of The Trustee or any Office
or Agency designated by the Company in the Borough of Manhattan, The City of New
York if (but only if) payment of the full amount of such principal, premium,
interest or Additional Amounts at all offices outside the United States
maintained for the purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or other similar
restrictions.
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 Securities of any series 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. Unless otherwise provided in or pursuant to this
Indenture, the Company hereby designates as the Place of Payment for each series
the Borough of Manhattan, The City of New York, and initially appoints the
Corporate Trust Office of the Trustee as the Office or Agency for such purpose.
Pursuant to Section 301(10) of this Indenture, the Company may subsequently
appoint an additional or different place or places in the Borough of Manhattan,
The City of New York where such Securities may be payable.
Unless otherwise specified in an Officers' Certificate, the Company
hereby appoints the Trustee as its Paying Agent hereunder.
SECTION 1003. Money for Securities 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, if any) or
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<PAGE>
interest on or Additional Amounts with respect to 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, if any) or interest
or Additional Amounts so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
Whenever the 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, if any) or interest on or Additional Amounts with respect to any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest or Additional Amounts so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, 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 for any series of Securities
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, if any) or interest on or Additional Amounts with respect to
Securities of that series 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 of that series) in the making of any
payment of principal (and premium, if any) or interest on or Additional
Amounts with respect to the Securities of that series; 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 Paying Agent shall also be entitled to the benefits and
protections afforded the Trustee under Article Six.
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, if
any) or interest on or any Additional Amounts with respect to any Security of
any series and remaining unclaimed for two years after such principal (and
premium, if any) or interest or any such Additional Amounts have 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 or
any Coupon appertaining thereto 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 an
Authorized Newspaper, notice that such Money remains unclaimed and that, after a
date specified therein, which shall not be less than
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30 days from the date of such publication, any unclaimed balance of such Money
then remaining will be repaid to the Company.
SECTION 1004. Additional Amounts.
------------------
If the Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of any series or any
Coupon appertaining thereto Additional Amounts as provided therein. Whenever in
this Indenture there is mentioned, in any context, the payment of the principal
of (or premium, if any) or interest on, or in respect of, any Security of any
series or any related Coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided for in this Section to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section and express
mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of Additional
Amounts, at least ten days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any) is made), and at least ten days prior to each date of payment
of principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal (and premium, if any) or interest on the Securities of that
series shall be made to Holders of Securities of that series or the Coupons
appertaining thereto who are United States Aliens without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Securities or Coupons and the
Company will pay to the Trustee or such Paying Agent the Additional Amounts
required by this Section. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section or in
reliance upon the failure of the Company to furnish any such certificate.
SECTION 1005. Corporate 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 corporate
existence and the rights (charter and statutory) and franchises of the Company
and its Subsidiaries; provided, however, that the Company shall not be required
-------- -------
to preserve any such right or franchise if it shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and/or any Subsidiary and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if
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unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; 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.
SECTION 1007. Limitation on Liens.
-------------------
The Company will not pledge or otherwise subject to any lien, any of
its property or assets unless the Securities are secured by such pledge or lien
equally and ratably with all other obligations secured thereby so long as such
other obligations shall be so secured; provided that such covenant will not
apply to liens securing obligations which do not in the aggregate at any one
time outstanding exceed 10% of Consolidated Net Tangible Assets of the Company
and also will not apply to:
(1) Any lien or charge on any property, tangible or intangible, real
or personal, existing at the time of acquisition or construction of such
property (including acquisition through merger or consolidation) or given to
secure the payment of all or any part of the purchase or construction price
thereof or to secure any indebtedness incurred prior to, at the time of, or
within one year after, the acquisition or completion of construction thereof for
the purpose of financing all or any part of the purchase or construction price
thereof;
(2) Any liens securing the performance of any contract or undertaking
of the Company not directly or indirectly in connection with the borrowing of
Money, obtaining of advances or credit or the securing of debts, if made and
continuing in the ordinary course of business;
(3) Any lien to secure nonrecourse obligations in connection with the
Company's engaging in leveraged or single investor lease transactions;
(4) Any lien in favor of the United States or any state thereof or the
District of Columbia, or any agency, department or other instrumentality
thereof, to secure progress, advance, or other payments pursuant to any contract
or provision of any statute;
(5) Mechanics', materialmen's, carriers', or other like liens arising
in the ordinary course of business (including construction of facilities) in
respect of obligations which are not due or which are being contested in good
faith;
(6) Any lien arising by reason of deposits with, or the giving of any
form of security to, any governmental agency or any body created or approved by
law or governmental regulations, which is required by law or governmental
regulation as a condition to the transaction of any business, or the exercise of
any privilege, franchise or license;
(7) Any liens for taxes, assessments or governmental charges or levies
not yet delinquent, or liens for taxes, assessments or governmental charges or
levies already delinquent but the validity of which is being contested in good
faith;
(8) Liens (including judgment liens) arising in connection with legal
proceedings so long as such proceedings are being contested in good faith and in
the case of judgment liens, execution thereof is stayed;
(9) Liens relating to secured indebtedness of the Company outstanding
on June 30, 1997; and
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(10) Any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any lien referred to in the
foregoing clauses (1) to (9) inclusive, of this Section 1007, provided, however,
that the amount of any and all obligations and indebtedness secured thereby
shall not exceed the amount thereof so secured immediately prior to the time of
such extension, renewal or replacement and that such extension, renewal or
replacement shall be limited to all or a part of the property which secured the
charge or lien so extended, renewed or replaced (plus improvements on such
property).
SECTION 1008. Statement by Officers as to Default.
-----------------------------------
(a) The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement (which need not be contained in or
accompanied by an Officers' Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company, stating that
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his or her
supervision, and
(2) to the best of his or her knowledge, based on such review, (a) the
Company has complied with all the conditions and covenants imposed on it
under this Indenture throughout such year, or, if there has been a default
in the fulfillment of any such condition or covenant, specifying each such
default known to him or her and the nature and status thereof, and (b) no
event has occurred and is continuing which is, or after notice or lapse of
time or both would become, an Event of Default, or, if such an event has
occurred and is continuing, specifying each such event known to him or her
and the nature and status thereof.
(b) The Company shall deliver to the Trustee, within five days after the
occurrence thereof, written notice of any event which after notice or lapse of
time or both would become an Event of Default.
SECTION 1009. Limitations on Incurrence of Obligations for Borrowed Money.
-----------------------------------------------------------
The Company will not create, assume, incur or otherwise become liable
in respect of, any
(a) Senior Debt unless the aggregate outstanding principal amount of
Senior Debt of the Company will not, at the time of such creation, assumption or
incurrence and after giving effect thereto and to any concurrent transactions,
exceed the greater of (i) 150% of Capital Base, or (ii) 225% of Tangible Net
Worth; and
(b) Non-Recourse Debt unless the aggregate principal amount of Senior
Debt and Non-Recourse Debt outstanding of the Company will not, at the time of
such creation, assumption or incurrence and after giving effect thereto and to
any concurrent transactions, exceed 225% of Capital Base.
For any period during which the Company shall have a Subsidiary or
Subsidiaries, the limitations contained in this Section 1009 shall be applied to
the consolidated financial statements of the Company and its Subsidiaries.
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<PAGE>
SECTION 1010. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1009, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority 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.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive compliance with any
term, provision or condition referred to in the immediately preceding paragraph.
If a record date is fixed, the Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to waive compliance
with any such term, provision or condition, whether or not such Holders remain
Holders after such record date: provided, that unless such requisite percentage
--------
in principal amount shall have been obtained prior to the date which is 90 days
after such record date, any such waiver previously given shall automatically and
without further action by any Holder be cancelled and of no further effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable at the option of the Company 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 or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of less than all the Securities of any series having
the same issue date, interest rate, Stated Maturity and other terms the Company
shall, at least 60 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, of the tenor, if applicable, of the Securities
to be redeemed, and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the 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 having the same issue
date, interest rate, Stated Maturity and other terms are to be redeemed (unless
all of the Securities 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
56
<PAGE>
subject to such redemption and 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 Registered Securities of such series or a denomination
larger than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any 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 in the manner provided in Section
106 not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed. Failure to give
notice by mailing in the manner herein provided to the Holder of any Registered
Securities designated for redemption in whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the proceedings for
the redemption of any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
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) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder of such Security will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;
(5) the CUSIP numbers of the Securities to be redeemed;
(6) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security or portion thereof to be redeemed and,
if applicable, that interest thereon will cease to accrue on and after said
date;
(7) the place or places where such Securities, together, in the case
of Bearer Securities with all Coupons appertaining thereto, if any,
maturing after the Redemption
57
<PAGE>
Date, are to be surrendered for payment of the Redemption Price and any
accrued interest and Additional Amounts pertaining thereto;
(8) that the redemption is for a sinking fund, if such is the case;
(9) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by
all Coupons maturing subsequent to the date fixed for redemption or the
amount of any such missing Coupon or Coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished; and
(10) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on the Redemption Date pursuant to Section 305 or otherwise, the
last date, as determined by the Company, on which such exchanges may be
made.
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
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 made in
writing at least 15 days prior to the last day upon which notice of redemption
may be given under this Section 1104, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
---------------------------
On or 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 and any Additional
Amounts with respect thereto, all the Securities or portions thereof which are
to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities or
portion thereof 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 and the Coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
Coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest (and any Additional Amounts) to the Redemption Date; provided,
--------
however, that installments of interest on Bearer Securities whose Stated
- -------
Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of Coupons for such interest (at an office or agency
located outside the United States except as otherwise provided in Section 1002),
and provided, further, that, unless otherwise specified as contemplated by
Section 301 for Registered Securities of any series, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Registered Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Dates according to their terms and the provisions of Section 307.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest (and any Additional Amounts) represented by Coupons shall
be payable only upon presentation and surrender of those Coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
---------------------------
Any Registered 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 or her attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and make available for delivery 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. If
a Global Security is so surrendered, the Company shall execute, and the Trustee
shall authenticate and deliver to the Depositary for such Security in global
form as shall be specified in the Company Order with respect thereto to the
Trustee, without service charge, a new Security in global form in a denomination
equal to and in exchange for the unredeemed portion of the principal of the
Global Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of 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 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
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SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of Bearer
Securities of such series with all unmatured Coupons appertaining thereto, and
(2) may apply as a credit Securities of a series 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. If as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
1202, the principal amount of Securities of such series to be redeemed in order
to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying Agent
and applied to the next succeeding sinking fund payment; provided, however, that
the Trustee or such Paying Agent shall at the request of the Company from time
to time pay over and deliver to the Company any cash payment so being held by
the Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Securities of that series purchased by the Company having an unpaid principal
amount equal to the cash payment requested to be released to the Company.
SECTION 1203. 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 mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 1202, and the optional amount, if any, to be
added in cash to the next ensuing mandatory sinking fund payment, and will also
deliver to the Trustee any Securities to be so credited and not theretofore
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.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Applicability of Article; Company's Option to Effect Defeasance
---------------------------------------------------------------
or Covenant Defeasance.
----------------------
Unless otherwise provided pursuant to Section 301, this Article Thirteen
shall be applicable to the Securities of such series and any Coupons
appertaining thereto, and the Company may at its option by or pursuant to Board
Resolution, at any time, with respect to the Securities of such series and any
Coupons appertaining thereto, elect to have either Section 1302 (if applicable)
or
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Section 1303 (if applicable) be applied to the Outstanding Securities of such
series upon compliance with the conditions set forth below in this Article
Thirteen.
SECTION 1302. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Securities of such series and any
Coupons appertaining thereto on and after the date the conditions precedent set
forth below are satisfied but subject to satisfaction of the conditions
subsequent set forth below (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 any Coupons appertaining thereto and to have satisfied all its other
obligations under such Securities 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: (1) the rights of
Holders of Outstanding Securities of such series and any Coupons appertaining
thereto to receive, solely from the trust fund described in Section 1304 and as
more fully set forth in such Section, payments of the principal of (and premium,
if any) and interest on or Additional Amounts with respect to such Securities
and Coupons when such payments are due, (2) the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1002 and 1003 and such
obligations as shall be ancillary thereto, (3) the rights, powers, trusts,
duties, indemnities, immunities and other provisions in respect of the Trustee
hereunder and (4) this Article Thirteen. Subject to compliance with this
Article Thirteen, the Company may exercise its option under this Section 1302
notwithstanding the prior exercise of its option under Section 1303 with respect
to the Securities of such series. Following a defeasance, payment of the
Securities of such series may not be accelerated because of an Event of Default.
SECTION 1303. Covenant Defeasance.
-------------------
Upon the Company's exercise of the above option applicable to this
Section, the Company shall be released from its obligations under Sections 1004
through 1009 (and any other Sections applicable to such Securities that are
determined pursuant to Section 301 to be subject to this provision) and the
occurrence of an Event of Default specified in Section 501(4) (insofar as it is
with respect to Sections 1004 through 1009 or any other Section applicable to
such Securities that are determined pursuant to Section 301 to be subject to
this provision) or Section 501(4) shall be deemed not to be an Event of Default
with respect to the Outstanding Securities of such series on and after the date
the conditions precedent set forth below are satisfied but subject to
satisfaction of the conditions subsequent set forth below (hereinafter,
"covenant defeasance"). For this purpose, such covenant defeasance means that,
with respect to the Outstanding Securities of such series, 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 Section, whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby. Following a covenant defeasance, payment of the Securities
of such series may not be accelerated because of an Event of Default specified
in Section 501(4) or by reference to such other Section specified above in this
Section 1303.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions precedent or, as specifically noted
below, subsequent to application of either Section 1302 or Section 1303 to the
Outstanding Securities of such series:
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(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
Thirteen applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, (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 will provide, not later than one day before the due date of any
payment, Money in an amount, or (c) a combination thereof, sufficient,
without reinvestment, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest on and Additional Amounts
with respect to the Outstanding Securities of such series to Maturity and
(ii) any mandatory sinking fund payments or analogous payments applicable to
the Outstanding Securities of such series on the due dates thereof. Before
such a deposit the Company may make arrangements satisfactory to the Trustee
for the redemption of Securities at a future date or dates in accordance with
Article Eleven, which shall be given effect in applying the foregoing. For
this purpose, "U.S. Government Obligations" means securities that are (a)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (b) 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) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of such
series shall have occurred and be continuing (a) on the date of such deposit
or (b) insofar as subsections 501(5) and (6) are concerned, at any time
during the period ending on the 123rd day after the date of such deposit or,
if longer, ending on the day following the expiration of the longest
preference period applicable to the Company in respect of such deposit (it
being understood that the condition in this clause (2) is a condition
subsequent and shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not (a) cause the
Trustee for the Securities of such series to have a conflicting interest as
defined in Section 608 or for purposes of the Trust Indenture Act with
respect to any securities of the Company or (b) result in the trust arising
from such deposit to constitute, unless it is qualified as, a regulated
investment company under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by which
it is bound.
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(5) Such defeasance or covenant defeasance shall not cause any Securities
of such series then listed on any registered national securities exchange
under the Securities Exchange Act of 1934, as amended, to be delisted.
(6) In the case of an election under Section 1302, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (a) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling, or (b) 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 defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had not
occurred.
(7) In the case of an election under Section 1303, 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 income, gain
or loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(8) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
(9) 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 1302
or the covenant defeasance under Section 1303 (as the case may be) have been
complied with.
SECTION 1305. 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 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of such 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 (but not
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 and
Additional Amounts, but such Money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Money or U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof.
Anything herein 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 1304 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee,
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are in excess of the amount thereof which would then be required to be deposited
to effect an equivalent defeasance or covenant defeasance.
Anything herein to the contrary notwithstanding, if and to the extent the
deposited Money or U.S. Government Obligations (or the proceeds thereof) either
(a) cannot be applied by the Trustee in accordance with this Section because of
a court order or (b) are for any reason insufficient in amount, then the
Company's obligations to pay principal of (and premium, if any) and interest on
and Additional Amounts with respect to the Securities of such series shall be
reinstated to the extent necessary to cover the deficiency on any due date for
payment. In any case specified in clause (a) of this paragraph, the Company's
interest in the deposited Money and U.S. Government Obligations (and proceeds
thereof) shall be reinstated to the extent the Company's payment obligations are
reinstated.
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1401. Applicability of Article.
------------------------
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal amount
of such Securities pursuant to such option of the Holder to require repayment of
Securities before their Stated Maturity, for purposes of Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness represented
by such Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the contrary contained in this Section
1401, in connection with any repayment of Securities, the Company may arrange
for the purchase of any Securities by an agreement with one or more investment
bankers or other purchasers to purchase such Securities by paying to the Holders
of such Securities on or before the close of business on the repayment date an
amount not less than the repayment price payable by the Company on repayment of
such Securities, and the obligation of the Company to pay the repayment price of
such Securities shall be satisfied and discharged to the extent such payment is
so paid by such purchasers.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
-----------------------------------------
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
----------------------------------
(1) The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1501, to be held at such
time and at such place in The City of New York, or, if Securities of such
series have been issued as Bearer Securities, in London or such other place
outside the United States, as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and
the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be
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given, in the manner provided in Section 106, not less than 21 nor more than
180 days prior to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call
a meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication or mailing of the notice of such meeting
within 21 days after receipt of such request or shall not thereafter proceed
to cause the meeting to be held as provided herein, then the Company or the
Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in The City of New York,
or, if Securities of such series are to be issued as Bearer Securities, in
London for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (1) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action.
--------------
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than 66-
2/3% in principal amount of the Outstanding Securities of a series, the Persons
entitled to vote 66-2/3% in principal amount of the Outstanding Securities of
such series shall constitute a quorum. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(1), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than 66-2/3% in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly convened and at which a quorum
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is present as aforesaid only by the affirmative vote of the Holders of 66-2/3%
in principal amount of the Outstanding Securities of that series; and provided,
further, that, except as limited by the proviso to Section 902, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
----------------------------------------------------------
Meetings.
--------
(1) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting
of Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in
the manner specified in Section 104 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 104 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(2), in which
case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at
the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 of principal amount of
Securities of such series held or represented by him or her; provided,
however, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
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SECTION 1506. Counting Votes and Recording Action of Meetings.
-----------------------------------------------
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SIXTEEN
SECURITIES IN FOREIGN CURRENCIES
SECTION 1601. Applicability of Article.
------------------------
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series, any amount in
respect of any Security denominated in a currency other than Dollars shall be
treated for any such action or distribution as that amount of Dollars that could
be obtained for such amount on such reasonable basis of exchange and as of the
record date with respect to Registered Securities of such series (if any) for
such action, determination of rights or distribution (or, if there shall be no
applicable record date, such other date reasonably proximate to the date of such
action, determination of rights or distribution) as the Company may specify in a
written notice to the Trustee or, in the absence of such written notice, as the
Trustee may determine.
* * * *
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.
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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.
NATIONWIDE HEALTH PROPERTIES, INC.,
a Maryland corporation
[SEAL]
By: /s/ Mark L. Desmond
------------------------------------------
Name: Mark L. Desmond
Title: Senior Vice President and
Chief Financial Officer
Attest:
By: /s/ R. Bruce Andrews
-------------------------
THE BANK OF NEW YORK,
[SEAL] as Trustee
By: /s/ Vivian Georges
------------------------------------------
Name: Vivian Georges
Title: Assistant Vice President
Attest:
By: /s/ Mary Beth Lewicki
------------------------
68
