<PAGE>
As filed with the Securities and Exchange Commission on July 16, 1998
Registration No. 333-56237
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 1 to
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BRANDYWINE REALTY TRUST
AND BRANDYWINE OPERATING
PARTNERSHIP, L.P.
(Exact name of Registrant as specified in its charter)
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Brandywine Realty Trust - Maryland Brandywine Realty Trust - 23-2413352
Brandywine Operating Partnership, L.P. - Delaware Brandywine Operating Partnership, L.P. - 23-2862640
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
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16 Campus Boulevard
Newtown Square, Pennsylvania 19073
(610) 325-5600
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
Gerard H. Sweeney
President and Chief Executive Officer
16 Campus Boulevard
Newtown Square, Pennsylvania 19073
(610) 325-5600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Michael H. Friedman, Esquire
Pepper Hamilton LLP
3000 Two Logan Square
Philadelphia, Pennsylvania 19103-2799
(215) 981-4563
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Approximate date of commencement of proposed sale to the public: As
soon as possible after the effective date of this Registration Statement and
from time to time as determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
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The Registrants hereby amend this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrants shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The prospectus contained in this Registration Statement relates to and
constitutes a Post-Effective Amendment to the Registration Statement on Form S-3
(No. 333-39155) of Brandywine Realty Trust, and it is intended to be the
combined prospectus referred to in Rule 429 under the Securities Act of 1933, as
amended.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Preliminary Prospectus dated July 16, 1998
Subject to Completion
================================================================================
BRANDYWINE REALTY TRUST
$663,129,026
Preferred Shares, Common Shares, Depositary Shares and Warrants
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BRANDYWINE OPERATING PARTNERSHIP, L.P.
$750,000,000
Debt Securities
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We will provide specific terms of these securities in
supplements to this prospectus.
You should read this prospectus and any supplement carefully
before you invest.
----------
See "Risk Factors" beginning on page 6 of this prospectus
for certain factors relevant to an investment in these securities.
----------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is [ ], 1998.
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TABLE OF CONTENTS
Page
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ABOUT THIS PROSPECTUS....................................................3
WHERE YOU CAN FIND MORE INFORMATION......................................3
SUMMARY..................................................................4
RISK FACTORS.............................................................6
RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED SHARE
DISTRIBUTIONS......................................................14
USE OF PROCEEDS.........................................................14
DESCRIPTION OF DEBT SECURITIES..........................................15
DESCRIPTION OF SHARES OF BENEFICIAL INTEREST............................25
DESCRIPTION OF DEPOSITARY SHARES........................................29
DESCRIPTION OF WARRANTS.................................................33
CERTAIN PROVISIONS OF MARYLAND LAW AND OF THE COMPANY'S
DECLARATION OF TRUST AND BYLAWS....................................33
POLICIES WITH RESPECT TO CERTAIN ACTIVITIES.............................37
FEDERAL INCOME TAX CONSIDERATIONS.......................................39
PLAN OF DISTRIBUTION....................................................52
EXPERTS.................................................................53
LEGAL MATTERS...........................................................54
TAX MATTERS.............................................................54
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ABOUT THIS PROSPECTUS
This prospectus (this "Prospectus") is part of a registration statement
that we filed with the Securities and Exchange Commission (the "SEC") utilizing
a "shelf" registration process. Under this shelf process, we may sell any
combination of the securities in one or more offerings. This Prospectus provides
you with a general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this Prospectus. Before you
invest, you should read both this Prospectus and any prospectus supplement
together with the additional information described under the heading WHERE YOU
CAN FIND MORE INFORMATION.
WHERE YOU CAN FIND MORE INFORMATION
Brandywine Realty Trust (collectively with its subsidiaries, the "Company")
files, and Brandywine Operating Partnership, L.P. (the "Operating Partnership")
will file, annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also photocopy any
document we file at the SEC's public reference rooms in Washington, D.C., New
York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference rooms.
The registration statement on Form S-3 of which this Prospectus is a part
contains important additional information not included in this Prospectus.
Statements in the registration statement summarizing other documents are
qualified by reference to such documents which have been filed as exhibits to
the registration statement or other filings made with the SEC. The registration
statement is available at the SEC's web site and public reference rooms.
The SEC allows us to "incorporate by reference" the information which we
file with them, which means we can disclose important information to you by
referring to those documents. The information incorporated by reference is an
important part of this Prospectus and information which we file later with the
SEC will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings we make with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), until we sell all of the securities.
o The Company's Annual Report on Form 10-K for the year ended December
31, 1997, as amended by a Form 10-K/A No. 1;
o The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998;
o The combined statements of revenues and certain expenses of the Green
Hills Properties for the year ended December 31, 1996; the combined
statements of revenues and certain expenses of Berwyn Park Properties
for the year ended December 31, 1996; and the reports thereon of the
Company's independent public accountants included in the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1997;
o The Company's Current Reports on Form 8-K/A No. 1 dated February 13,
1997; Form 8-K/A No. 2 dated February 24, 1997; Form 8-K/A No. 1 dated
April 29, 1997; Form 8-K dated June 9, 1997; Form 8-K dated June 26,
1997; Form 8-K dated September 10, 1997; Form 8-K dated October 30,
1997; Form 8-K dated December 17, 1997; Form 8-K dated January 9,
1998; Form 8-K dated January 27, 1998; Form 8-K dated January 30,
1998; Form 8-K dated February 13, 1998; Form 8-K dated February 23,
1996; Form 8-K dated February 25, 1998; Form 8-K dated March 17, 1998;
Form 8-K dated April 13, 1998; Form 8-K/A dated April 16, 1998; Form
8-K dated April 17, 1998; Form 8-K dated May 14, 1998; and Form 8-K
dated June 3, 1998;
o The description of the Common Shares contained in the Company's
Registration Statement on Form 8-A dated October 14, 1997 and any
other reports or amendments filed for the purpose of updating such
description; and
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o The description of the Operating Partnership's general partnership
units contained in its Registration Statement on Form 10, as amended
by Form 10/A-1, filed with the Commission pursuant to the Exchange
Act, and any other reports or amendments filed for the purpose of
updating such description.
You may request a copy of these filings (not including the exhibits to such
filings unless such exhibits are specifically incorporated by reference therein)
at no cost, by writing or telephoning us at the following address:
Brandywine Realty Trust
16 Campus Boulevard
Newtown Square
Pennsylvania 19073
Attention: Brad A. Molotsky, Secretary
(610) 325-5600
You should rely only on the information provided or incorporated by
reference in this Prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this Prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of those documents.
SUMMARY
The following summary is qualified in its entirety by the more detailed
descriptions and the financial information and statements, and the notes in such
documents, appearing elsewhere and incorporated by reference in this Prospectus.
The Company and the Operating Partnership
The Company is a self-administered, self-managed and fully integrated real
estate investment trust ("REIT") active in acquiring, developing, redeveloping,
leasing and managing primarily suburban office properties. As of June 1, 1998,
the Company's portfolio included 151 office properties and 28 industrial
facilities (collectively, the "Properties") that contained an aggregate of
approximately 12.2 million net rentable square feet. Certain of the Properties
serve as flex facilities, accommodating office use, warehouse space and research
and development activities.
As of June 1, 1998, the Company was in the process of developing two
suburban office buildings that are expected to contain an aggregate of
approximately 69,000 and 38,000 net rentable square feet, respectively, upon
completion. The Company expects completion to occur during the fourth quarter of
1998. As of June 1, 1998, the Company also owned or held options to purchase
approximately 302.5 acres of land for future development.
In addition, as of June 1, 1998, the Company owned economic interests,
ranging from 35% to 65%, in eight office development joint ventures (the
"Development Entities"). Two of the Development Entities own two suburban office
buildings that contain an aggregate of approximately 233,000 net rentable square
feet. A Third Development Entity is in the process of constructing a suburban
office building that is expected to contain approximately 85,000 net rentable
square feet upon completion. The Company expects this building to be completed
during 1998. As of June 1, 1998, the Development Entities also owned or held
options to purchase approximately 46.8 acres of land for future development.
The Company owns its assets and conducts its operations through the
Operating Partnership and subsidiaries of the Operating Partnership. The Company
is the sole general partner of the Operating Partnership and, as of June 1,
1998, held an approximately 97.4% interest in the Operating Partnership.
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The Company provides real estate management services through a management
company (the "Management Company"). As of June 1, 1998, the Management Company
managed approximately 12.2 million net rentable square feet (including 177 of
the Properties). Through its ownership of preferred stock and common stock of
the Management Company, the Operating Partnership is entitled to receive 95% of
amounts paid as dividends by the Management Company.
The Company was organized as a Maryland real estate investment trust in
1986. The Company's principal executive offices are located at 16 Campus
Boulevard, Newtown Square, Pennsylvania 19073 and its telephone number is (610)
325-5600.
Securities Offered
Pursuant to this Prospectus, the Company may offer any combination of the
following securities (the "Equity Securities") with an aggregate public offering
price of up to $663,129,026:
o common shares of beneficial interest, $0.01 par value per share
("Common Shares");
o one or more series of preferred shares of beneficial interest, $0.01
par value per share ("Preferred Shares");
o one or more series of Preferred Shares represented by depositary
shares ("Depositary Shares"); and
o warrants to purchase Preferred Shares, Common Shares or Depository
Shares ("Warrants").
In addition, the Operating Partnership may offer one or more series of
unsecured non-convertible debt securities (the "Debt Securities") with an
aggregate public offering price of up to $750,000,000. If any Debt Securities
are rated below investment grade at the time of issuance, they will be fully and
unconditionally guaranteed by the Company (the "Guarantees"). We refer to the
Equity Securities and Debt Securities collectively as the "Securities."
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RISK FACTORS
This Prospectus contains forward-looking statements. These statements are
identified by words such as "expect," "anticipate," "should" and words of
similar import. Actual results may differ significantly from those expressed or
implied by the forward-looking statements. Factors that might cause such a
difference include the various risks set forth below that we believe are
material to investors who purchase or own our securities. Before deciding to
purchase the securities offered hereby, prospective investors should carefully
consider the following information together with the other information contained
in this Prospectus.
Our lack of geographic diversification ties our performance to the economic
conditions of the Suburban Philadelphia Office and Industrial Market.
The vast majority of our Properties are located in the Suburban
Philadelphia Office and Industrial Market, which includes Berks, Bucks, Chester,
Delaware, Lehigh, Montgomery and Northampton counties in Pennsylvania and
Burlington and Camden counties in New Jersey. As we continue to grow, we intend
to acquire more properties located in this market. Consequently, adverse
economic conditions in this market could adversely affect our performance and
ability to make distributions to shareholders. In addition, the concentration of
our Properties in this market rather than in several markets may cause the risks
associated with adverse economic conditions in this market to be magnified.
There can be no assurance that we will effectively manage our rapid growth.
We have been growing rapidly. Since August 1, 1996, we have acquired 175 of
the 179 Properties owned by us on June 1, 1998. We plan on managing this growth
by applying our experience to newly acquired properties and expect to be
successful in that effort. No assurances can be given, however, that we will
succeed in our integration efforts or that newly acquired properties will
perform as we expect. If we do not effectively manage our rapid growth, our cash
flow and ability to make distributions to shareholders may be adversely
affected.
Our ability to make distributions is subject to various risks.
We pay regular distributions to our shareholders. Our ability to make
distributions in the future will depend upon:
o the timing of future issuances of additional Common Shares;
o the performance of our Properties;
o expenditures with respect to existing and newly acquired properties;
o the amount of, and the interest rates on, our debt; and
o the absence of significant expenditures relating to environmental or
other regulatory matters.
Certain of these matters are beyond our control and any significant difference
between our expectations and actual results could have a material adverse effect
our cash flow and its ability to make or sustain distributions.
General risks associated with the real estate industry.
The economic performance and value of our Properties may be
adversely affected by:
o changes in the national, regional and local economic climate;
o local conditions, such as, an oversupply of, or a reduction in demand
for, office properties
o the attractiveness of our Properties to tenants;
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o competition from other available office and industrial properties;
o changes in market rental rates; and
o the need to periodically repair, renovate and relet space.
Our performance also depends on our ability to collect rent from tenants and to
pay for adequate maintenance, insurance and other operating costs (including
real estate taxes and utilities) which could increase over time. In addition,
market factors causing a reduction in income from a property do not necessarily
cause a corresponding reduction in the expenses related to such property.
We may be unable to renew leases or relet space as leases expire.
If our tenants fail to renew their leases upon expiration, we may be unable
to relet the subject space. Even if the tenants do renew their leases or we can
relet the space, the terms of renewal or reletting (including the cost of
required renovations) may be less favorable than current lease terms. Certain
leases grant the tenants an early termination right upon payment of a
termination penalty. While we have estimated the expenditures for new and
renewal leases for 1998 and 1999, no assurances can be given as to the accuracy
of such estimates. Any of these factors could have an adverse affect on our cash
flow and ability to make distributions to shareholders.
Financially distressed tenants may limit our ability to realize the value of our
investments.
Following a tenant's lease default, we may experience delays in enforcing
our rights as a landlord and may incur substantial costs in protecting our
investment. In addition, a tenant may seek bankruptcy law protection which could
cause the tenant's lease to be rejected. Tenant defaults or rejections could
have an adverse affect on our cash flow and ability to make distributions to
shareholders.
We face significant competition from other real estate developers.
We compete with a number of real estate developers, operators and
institutions for tenants and acquisition opportunities. Some of these
competitors have significantly greater resources than we do. No assurances can
be given that this competition will not adversely affect our cash flow and
ability to make distributions to shareholders.
Because real estate is illiquid, we may not be able to sell properties when
appropriate. Real estate investments generally cannot be sold quickly.
We may not be able to vary our portfolio promptly in response to economic
or other conditions. In addition, the Internal Revenue Code of 1986, as amended
(the "Code"), limits our ability to sell properties held for fewer than four
years. We have also agreed with certain of the sellers of properties to us not
to resell the properties for varying periods of time. Purchase options and
rights of first refusal held by certain tenants may limit our ability to sell
certain properties. Any of these factors could adversely affect our cash flow
and ability to make distributions to shareholders.
Changes in the law may adversely affect our cash flow.
Because increases in income and service taxes are generally not passed
through to tenants under leases, such increases may adversely affect our cash
flow and ability to make expected distributions to shareholders. The Properties
are also subject to various federal, state and local regulatory requirements,
such as those relating to fire and safety. Failure to comply with these
requirements could result in the imposition of fines or damage awards to private
litigants. While we believe that the Properties are currently in material
compliance with all such requirements, there can be no assurance that these
requirements will not change or that newly imposed requirements will not require
significant unanticipated expenditures having an adverse affect on our cash flow
and ability to make distributions to shareholders.
Compliance with the Americans with Disabilities Act may adversely affect our
cash flow.
The Americans with Disabilities Act of 1990 (the "ADA") requires all public
accommodations and commercial facilities to meet certain federal requirements
related to access and use by disabled persons. Compliance with these
requirements could require removal of access barriers and noncompliance could
result in imposition of fines or a damage awards to private litigants. While we
believe that the Properties are in material compliance with these requirements,
we may incur additional costs to comply with the ADA. If required changes
involved a greater expenditure than currently anticipated, our cash flow and
ability to make distributions to shareholders could be adversely affected.
By holding properties through the Operating Partnership and various joint
ventures, we are exposed to certain additional risks.
We own our Properties and our interests in the Development Entities through
the Operating
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Partnership. In the future, we expect to continue to participate with other
entities in property ownership through joint ventures or partnerships.
Partnership or joint venture investments may, under certain circumstances,
involve risks not otherwise present in direct investments. Such risks include:
o the potential bankruptcy of our partners or co-venturers;
o a conflict between our business goals and those of our partners
or co-venturers; and
o actions taken by our partners or co-venturers contrary to our
instructions or objectives, including our policy of maintaining
the Company's REIT qualification.
We will, however, seek to maintain sufficient control of such partnerships and
joint ventures to enable us to achieve our business objectives. Investors should
be aware that there is no limitation under our organizational documents as to
the amount of funds which we may invest in partnerships or joint ventures.
Future acquisitions may fail to perform in accordance with our expectations and
may require development and renovation costs exceeding our estimates.
We intend to continue acquiring office and industrial properties.
Changing market conditions, however, including competition from others, may
diminish our opportunities for making attractive acquisitions. Once made, our
investments may fail to perform in accordance with our expectations. In
addition, the estimated renovation and improvement costs incurred in bringing an
acquired property up to market standards may exceed our estimates. We anticipate
financing future acquisitions and renovations through a combination of advances
under lines of credit and other forms of secured or unsecured financing. If new
developments are financed through construction loans, there is a risk that, upon
completion of construction, permanent financing for newly developed properties
may not be available or may be available only on disadvantageous terms.
While we have limited our business primarily to the Suburban
Philadelphia Office and Industrial Market, recently we have begun to expand into
new geographic markets. Our unfamiliarity with such new markets could adversely
affect our operations in these new localities.
In addition to acquisitions, we periodically consider developing,
redeveloping and constructing office buildings and other commercial properties.
Risks associated with development, redevelopment and construction activities
include:
o the unavailability of favorable financing;
o the abandonment of such activities prior to completion;
o construction costs exceeding original estimates;
o costs and construction and lease-up delays resulting in increased
debt service expense and construction costs; and
o insufficient occupancy rates and rents at a newly completed
property causing a property to be unprofitable.
Development and redevelopment activities also require a substantial portion of
our management's time and attention and are subject to risks relating to our
inability to obtain, or delays in obtaining, all necessary zoning, land-use,
building, occupancy and other required governmental permits and authorizations.
Our indebtedness subjects us to additional risks.
Debt Financing and Existing Debt Maturities. We are subject to risks
normally associated with debt financing, such as the insufficiency of cash flow
to meet required payment obligations and the inability to refinance existing
indebtedness. If our debt cannot be paid, refinanced or extended at maturity, in
addition to our failure to repay our debt, we may not be able to make
distributions to shareholders at all or at expected levels. Furthermore, if
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any refinancing is done at higher interest rates, the increased interest expense
could adversely affect our cash flow and ability to make distributions to
shareholders. In addition, if we do not meet our mortgage financings
obligations, any properties securing such indebtedness could be foreclosed on,
which would have a material adverse effect our cash flow and ability to make
distributions and, depending on the number of properties foreclosed on, could
threaten our continued viability.
Risk of Rising Interest Rates and Variable Rate Debt. Increases in
interest rates on variable rate indebtedness would increase our interest
expense, which could adversely affect our cash flow and ability to make
distributions to shareholders.
No Limitation on Debt. Although we have adopted a policy that limits
the Company's debt-to-total market capitalization ratio of to 50%, the Company's
organizational documents do not contain any such numerical limitation.
Accordingly, the Board of Trustees could leverage the Company in excess of such
threshold. The increased debt service could adversely affect our cash flow and
ability to make distributions and could increase the risk of default on our
indebtedness.
The Company's ability to satisfy the Guarantees is dependent upon the Operating
Partnership's performance.
All operations of the Company are conducted by the Operating
Partnership, and the only revenue-generating asset of the Company is its
interest in the Operating Partnership. As a result, the Company is dependent
upon the receipt of distributions or other payments from the Operating
Partnership in order to meet its financial obligations, including its
obligations under any Guarantees. Any Guarantees will be effectively
subordinated to existing and future liabilities of the Operating Partnership. At
June 1, 1998, the Operating Partnership had approximately $421.9 million of
indebtedness outstanding, of which approximately $65.3 was secured and $356.6
was unsecured.
Our success as a REIT is dependent on compliance with Federal Income Tax
requirements.
Our failure to qualify as a REIT would have serious adverse
consequences to our securityholders. We believe that, since 1986, the Company
has qualified for taxation as a REIT for federal income tax purposes. We plan to
continue to meet the requirements for taxation as a REIT. Many of these
requirements, however, are highly technical and complex. The determination that
the Company is a REIT requires an analysis of various factual matters and
circumstances that may not be totally within our control. For example, to
qualify as a REIT, at least 95% of our gross income must come from certain
sources that are itemized in the REIT tax laws. The Company is also required to
distribute to shareholders at least 95% of its REIT taxable income (excluding
capital gains). The fact that we hold our assets through the Operating
Partnership and its subsidiaries further complicates the application of the REIT
requirements. Even a technical or inadvertent mistake could jeopardize our REIT
status. Furthermore, Congress and the IRS might make changes to the tax laws and
regulations, and the courts might issue new rulings that make it more difficult,
or impossible, for the Company to remain qualified as a REIT. We do not believe,
however, that any pending or proposed tax law changes would jeopardize our REIT
status.
To maintain REIT status, a REIT may not own more than 10% of the voting
stock of any corporation, except for a qualified REIT subsidiary (which must be
wholly-owned by the REIT) or another REIT. In order to comply with this rule,
the Operating Partnership owns 5% of the voting common stock and all of the
non-voting preferred stock of the Management Company. The Internal Revenue
Service ("IRS"), however, could contend that the Operating Partnership's
ownership of all of the non-voting preferred stock of the Management Company
should be viewed as voting stock because of the Operating Partnership's
substantial economic position in the Management Company. If successful in such a
contention, the Company's status as a REIT would be lost and the Company would
be subject to the consequences set forth below.
Arthur Andersen LLP, special tax advisor to the Company, has given us
an opinion to the effect that, beginning with its taxable year ended December
31, 1986, the Company was organized and has operated in conformity with the
requirements for qualification and taxation as a REIT under the Code for each of
its taxable years and that the Company's current method of organization and
operation will enable it to continue to so qualify. See "Federal Income Tax
Considerations -- General." The opinion of Arthur Andersen LLP is based on
assumptions and factual representations made by us regarding the Company's
ability to meet the requirements for qualification as a REIT and the opinion of
Pepper Hamilton LLP that the shares of preferred stock issued by the Management
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Company to the Operating Partnership do not constitute voting securities for
purposes of the Investment Company Act of 1940, as amended. Such opinion is not
binding on the IRS or any court. Moreover, Arthur Andersen LLP does not review
or monitor the Company's compliance with the requirements for REIT qualification
on an ongoing basis. We cannot guarantee that the Company will be qualified and
taxed as a REIT, because the Company's qualification and taxation as a REIT will
depend upon the Company's ability to meet, on an ongoing basis, the requirements
imposed under the Code.
If the Company fails to qualify as a REIT, the Company would be subject
to federal income tax at regular corporate rates. Also, unless the IRS granted
the Company relief under certain statutory provisions, the Company would remain
disqualified as a REIT for four years following the year the Company first
failed to qualify. If the Company failed to qualify as a REIT, the Company would
have to pay significant income taxes and would therefore have less money
available for investments or for distributions to shareholders. This would
likely have a significant adverse affect of the value of our securities. In
addition, the Company would no longer be required to make any distributions to
shareholders. See "Federal Income Tax Considerations -- Failure to Qualify."
In order to make the distributions required to maintain the Company's
REIT status, we may need to borrow funds. To obtain the favorable tax treatment
associated with REIT qualification, the Company generally will be required to
distribute to its shareholders at least 95% of its annual REIT taxable income
(excluding net capital gain). In addition, the Company will be subject to tax on
its undistributed net taxable income and net capital gain and a 4% nondeductible
excise tax on the amount, if any, by which certain distributions paid by it with
respect to any calendar year are less than the sum of 85% of its ordinary income
plus 95% of its capital gain net income for the calendar year, plus certain
undistributed amounts from prior years.
We intend to make distributions to shareholders to comply with the
distribution provisions of the Code and to avoid income and other taxes. The
Company's income will consist primarily of the Company's share of the income of
the Operating Partnership and the Company's cash flow will consist primarily of
its share of distributions from the Operating Partnership. Differences in timing
between the receipt of income and the payment of expenses in arriving at taxable
income (of the Company or the Operating Partnership) and the effect of required
debt amortization payments could require us to borrow funds on a short-term
basis or liquidate funds on adverse terms to meet the REIT qualification
distribution requirements.
The failure of the Operating Partnership (or a subsidiary partnership)
to be treated as a partnership would have serious adverse consequences to our
securityholders. If the IRS were to successfully challenge the tax status of the
Operating Partnership or any of its subsidiary partnerships for federal income
tax purposes, the Operating Partnership or the affected subsidiary partnership
would be taxable as a corporation. In such event, the Company would cease to
qualify as a REIT and the imposition of a corporate tax on the Operating
Partnership or a subsidiary partnership would reduce the amount of cash
available for distribution from such partnership to the Company and its
shareholders. See "Federal Income Tax Considerations - Income Taxation of the
Operating Partnership, the Title Holding Partnerships and Their Partners."
We do pay some taxes. Even if the Company qualifies as a REIT, we are
required to pay certain federal, state and local taxes on our income and
property. In addition, the Management Company is subject to federal, state and
local income tax at regular corporate rates on its net taxable income derived
form its management, leasing and related service business. If the Company has
net income from a prohibited transaction, such income will be subject to a 100%
tax. See "Federal Income Tax Considerations - Taxation of the Company as a
REIT."
Environmental problems are possible and may be costly.
Federal, state and local laws, ordinances and regulations may require a
current or previous owner or operator of real estate to investigate and clean up
hazardous or toxic substances or releases at such property. The owner or
operator may have to pay a governmental entity or third parties for property
damage and for investigation and clean-up costs incurred by such parties in
connection with the contamination. Such laws typically impose clean-up
responsibility and liability without regard to whether the owner or operator
knew of or caused the presence of the contaminants. Even if more than one person
may have been responsible for the contamination, each person covered by the
environmental laws may be held responsible for all of the clean-up costs
incurred. In addition, third parties may sue the owner or operator of a site for
damages and costs resulting from environmental contamination emanating
-10-
<PAGE>
from that site. These costs may be substantial and the presence of such
substances may adversely affect the owner's ability to sell or rent such
property or to borrow using such property as collateral.
All of our Properties have been subject to a Phase I or similar
environmental site assessment (which involves general inspections without soil
sampling or groundwater analysis) completed by independent environmental
consultants. Except with respect to 110 Summit Drive at the Whitelands Business
Park in Exton, Pennsylvania (the "Whitelands Property") and the Affected
Properties at Paint Works (as defined below), we are not aware of any
environmental liability with respect to the Properties which we believe would
have a material adverse affect on us.
An environmental assessment has identified environmental contamination
with respect to the Whitelands Property. Petroleum products, solvents and heavy
metals were detected in the groundwater. These contaminants are believed to be
associated with debris deposited by third parties in a quarry formerly located
on the Whitelands Property. The Whitelands Property previously appeared on the
Comprehensive Environmental Response Compensation and Liability Information
System List, a list maintained by the United States Environmental Protection
Agency (the "EPA") of abandoned, inactive or uncontrolled hazardous waste sites
which may require cleanup. The EPA conducted a preliminary assessment of the
Whitelands Property in 1984, and subsequently the Whitelands Property was
removed from the list. Although we can offer no assurance, based on our review
of prior test results and consultation with counsel, we do not believe it is
likely that we will be required to undertake remedial action with respect to
such contamination, nor do we believe that any remediation that might be
requested would be material to the Company. However, if we were required to
undertake remedial action on the Whitelands Property, we have been indemnified
by Safeguard Scientifics, Inc. ("SSI") through August 2001 against the cost of
such remediation up to approximately $2.0 million. Because we do not believe
that any remediation at the Whitelands Property is probable, we have not accrued
any amounts for any such potential liability. The Company acquired the
Whitelands Property from SSI in August 1996 as part of an acquisition of a
portfolio of properties from SSI and its real estate affiliate. At the time of
the acquisition, Warren V. Musser, Chairman and Chief Executive Officer of SSI,
became a member of the Company's Board of Trustees.
An environmental assessment has identified environmental contamination
at land acquired by us as part of our acquisition of certain Properties that
include 6 East Clementon and 1, 4, 5, 7 and 10 Foster Avenue and an adjacent
parking lot. These Properties (the "Affected Properties") and certain
non-affected Properties are commonly referred to as the Paint Works Corporate
Center ("Paint Works"). Volatile organic compounds, semi-volatile organic
compounds and metals were detected in the groundwater, surface soils and
sub-surface soils, principally on land acquired by us which is adjacent to the
buildings located on the Affected Properties. These contaminants are associated
with the use by prior owners and operators of the properties and are believed to
be associated with the historic use of the Affected Properties as a paint and
varnish factory since the mid-nineteenth century. The Affected Properties have
been the subject of investigation by the New Jersey Department of Environmental
Protection ("NJDEP") since the mid-1970's. The NJDEP has issued two directives
to the former owners and operators of the site, ordering them to investigate and
remediate the contamination at the site. The NJDEP has also entered into two
administrative consent orders (the "ACO's") with Sherwin-Williams, the former
owner and operator primarily responsible for the environmental contamination at
the site, pursuant to which Sherwin-Williams has agreed to investigate and
commence certain remediation. The NJDEP has provided written assurances to the
Company that the NJDEP will not require us to investigate or remediate the site
so long as Sherwin-Williams continues to comply with the ACO's. In addition to
the foregoing, the NJDEP has also issued a letter of non-applicability for the
remainder of the Paint Works properties owned by us at the site. This letter
means that, based on the facts known to the NJDEP, the remainder of the Paint
Works properties is not within any state statutory program requiring
investigation or cleanup of environmental conditions. We have also been
indemnified against Sherwin-Williams' failure to comply with the ACO's and from
any migration of the aforesaid compounds onto the adjacent Company-owned
properties which are not part of the Affected Properties by PWCCW, a New Jersey
general partnership, and Robert K. Scarborough (collectively, "Scarborough"). If
Sherwin-Williams ceases to comply with the ACO's and Scarborough fails to
fulfill its indemnity, we could be responsible for costs associated with any
remediation. Because the Company does not believe that the occurrence of both of
these events is probable, we have not accrued any amounts for any such potential
liability.
We cannot give any assurance that existing environmental studies of our
Properties reveal all environmental liabilities or that any prior owner of any
such property did not create any material environmental condition unknown to us.
-11-
<PAGE>
Some potential losses are not covered by insurance.
We carry comprehensive liability, fire, extended coverage and rental
loss insurance on all of our Properties. We believe the policy specifications
and insured limits of these policies are adequate and appropriate. There are,
however, certain types of losses, such as lease and other contract claims, that
generally are not insured. Should an uninsured loss or a loss in excess of
insured limits occur, we could lose all or a portion of the capital we have
invested in a property, as well as the anticipated future revenue from the
property. In such an event, we might nevertheless remain obligated for any
mortgage debt or other financial obligations related to the property.
We do not control the Management Company.
While we own substantially all (95%) of the economic interest in the
Management Company, to maintain our REIT qualification, certain of the executive
officers of the Company indirectly hold 95% of the voting common stock of the
Management Company. Therefore, we do not control the timing or amount of
distributions by, or the management and operation of, the Management Company. As
a result, decisions relating to the payment of distributions by, and the
business policies and operations of, the Management Company could be adverse to
our interests.
Management contracts with third parties may be terminated.
We intend to selectively pursue the management of properties owned by
third parties. Our management fee income, however, is subject to decline, at any
time, because our management contracts with third parties are generally
terminable upon limited notice, may fail to be renewed upon expiration and
generate rental revenues based upon the then current real estate market
conditions.
The Board of Trustees may change our policies without shareholder approval.
The Board of Trustees controls our policies concerning investment,
financing, borrowing and distribution, as well as our operational and growth
activities. The Board of Trustees may amend or revise such policies or
activities without notice to, or a vote of, the Company's shareholders. Such
amendments or revisions may not fully serve the interests of all shareholders
and could adversely affect our distributions, financial condition, results of
operations or the market price of the Common Shares.
We are dependent upon our key personnel.
We are dependent upon the efforts of our executive officers,
particularly Anthony A. Nichols, Sr. and Gerard H. Sweeney. While we believe
that we could replace our key personnel, the loss of their services could have
an adverse affect on our operations. Although we have employment agreements with
Messrs. Nichols and Sweeney, such agreements do not restrict their ability to
become employed by a competitor following the termination of their employment
with us.
Certain limitations exist with respect to a third party's ability to acquire us
or effectuate a changes in control.
Limitations imposed to protect our REIT status. In order to protect the
Company against loss of its REIT status, the Company's Declaration of Trust
limits any shareholder from owning more than 9.8% in value of the Company's
outstanding shares, subject to certain exceptions. If you or anyone else
acquires shares in excess of the ownership limit, we may:
o consider the transfer to be null and void;
o not reflect the transaction on our books;
o institute legal action to enjoin the transaction;
o not pay dividends or other distributions with respect to
those shares;
o not recognize any voting rights for those shares; and
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<PAGE>
o consider the shares held in trust for the benefit of a
person to whom such shares may be transferred.
Limitation due to our ability to issue preferred shares. Our
Declaration of Trust authorizes the Board of Trustees to issue Preferred Shares.
The Board of Trustees may establish the preferences and rights of any Preferred
Shares issued which could have the effect of delaying or preventing someone from
taking control of us, even if a change in control were in our shareholders' best
interests.
Limitations imposed by the Business Combination Law. The Maryland
General Corporation Law establishes special restrictions against "business
combinations" between a Maryland real estate investment trust and "interested
shareholders" or their affiliates unless an exemptions is applicable. An
interested shareholder includes a person who beneficially owns, and an affiliate
of the trust who, at any time within the two-year period prior to the date in
question, was the beneficial owner of, ten percent or more of the voting power
of our then-outstanding voting shares. Among other things, the law prohibits
(for a period of five years) a merger and certain other transactions between the
Company and an interested shareholder unless the Board of Trustees approved the
transaction before the party become an interested shareholder. The five-year
period runs from the most recent date on which the interested shareholder became
an interested shareholder. Thereafter, any such business combination must be
recommended by the board of trustees and approved by two super-majority
shareholder votes unless, among other conditions, the trust's common
shareholders receive a minimum price for their shares and the consideration is
received in cash or in the same form as previously paid by the interested
shareholder for its shares or unless the Board of Trustees approved the
transaction before the party in question became an interested shareholder. The
business combination statute could have the effect of discouraging offers to
acquire us and of increasing the difficulty of consummating any such offers,
even if our acquisition would be in our shareholders' best interests.
Pursuant to the statute, we have previously exempted any business
combination involving SSI, The Nichols Company ("TNC"), Gerard H. Sweeney or
their affiliates (the Company's President and Chief Executive Officer) and any
of their affiliates. As a result, SSI, TNC, Mr. Sweeney and their affiliates and
associates (including Anthony A. Nichols, Sr., the Company's Chairman of the
Board) may be able to enter into business combinations with the Company which
may not be in the best interest of the shareholders. In addition, the Company
has exempted any business combination involving the Commonwealth of Pennsylvania
State Employees' Retirement System ("SERS") and a voting trust established for
its benefit (the "SERS Voting Trust"), Morgan Stanley Asset Management Inc. and
two funds (the "Morgan Stanley Funds") managed by it and any of their respective
affiliates or associates. See "Certain Provisions of Maryland Law and the
Company's Declaration of Trust and Bylaws Business Combinations."
Limitations imposed by the Maryland Control Share Statute. The Maryland
General Corporation Law provides that "control shares" of a Maryland real estate
investment trust acquired in a "control share acquisition" have no voting rights
except to the extent approved by a vote of two-thirds of the votes entitled to
be cast on the matter, excluding shares of beneficial interest owned by the
acquiror, by officers or by trustees who are employees of the trust. If voting
rights are not approved at a meeting of shareholders or if the acquiring person
does not deliver an acquiring person statement as required by the statute, then,
subject to certain conditions and limitations, the trust may redeem any or all
of the control shares (except those for which voting rights have previously been
approved) for fair value. If voting rights for control shares are approved at a
shareholders meeting and the acquiror becomes entitled to vote a majority of the
shares entitled to vote, all other shareholders may exercise appraisal rights.
The control share statute could have the effect of discouraging offers to
acquire us and of increasing the difficulty of consummating any such offers,
even if our acquisition would be in our shareholders' best interests.
Pursuant to the statute, the Company has exempted acquisitions by SSI,
TNC, and any current or future affiliate or associate of theirs from the control
shares statute. As a result, SSI or TNC will be able to possess voting power not
generally available to other persons. In addition, pursuant to the statute, the
Company has exempted any and all acquisitions by SERS, the SERS Voting Trust,
Morgan Stanley Asset Management Inc., the Morgan Stanley Funds and any of their
respective current or future affiliates or associates from the control share
statute.
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<PAGE>
Sales of a substantial number of Common Shares, or the perception that such
sales could occur, could adversely affect prevailing prices for the Common
Shares.
As of June 1, 1998, the Company has reserved: (i) 998,439 Common Shares
for issuance upon redemption of Operating Partnership Units and (ii) 2,805,808
Common Shares for issuance upon exercise of outstanding options and warrants.
The Company's Declaration of Trust permits the Board of Trustees to increase the
aggregate number of authorized shares of any class without shareholder approval.
We cannot predict the effect that future sales of Company securities will have
on the market price of the Common Shares.
The Issuance of Preferred Shares may adversely affect the rights of holders of
Common Shares.
Because the Board of Trustees has the power to establish the
preferences and rights of each class or series of Preferred Shares, it may
afford the holders in any series or class of Preferred Shares preferences,
distributions, powers and rights, voting or otherwise, senior to the rights of
holders of Common Shares.
Fluctuations in market interest rates may affect the price of the Common Shares.
One of the factors that influences the market price of the Common
Shares in the public market is the annual distribution rate on the shares.
Increasing market interest rates may lead prospective purchasers of the Common
Shares to demand a higher annual distribution rate from future distributions.
Such an increase in the required distribution may adversely affect the market
price of Common Shares.
RATIOS OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED SHARE DISTRIBUTIONS
The following table sets forth the ratios of earnings to fixed charges
and preferred share distributions for the Company for each of the five years
ended December 31, 1997, 1996, 1995, 1994 and 1993 and for the three months
ended March 31, 1998 and 1997.
Brandywine Realty Trust
Computation of Ratio of Earnings to Fixed Charges
and Preferred Share Distributions
(in thousands)
<TABLE>
<CAPTION>
For the three months
For the years ended December 31, ended March 31,
----------------------------------------------------------- ------------------------
1993 1994 1995 1996 1997 1997 1998
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
FIXED CHARGE COVERAGE RATIO (1) N/A (2) (3) (3) (3) 2.71 1.94 2.94
=========================================================== ========================
</TABLE>
(1) The fixed charge coverage ratio represents the number of times fixed charges
were covered by earnings. The ratio is computed by dividing fixed charges
and preferred share distributions into earnings before extraordinary items,
plus fixed charges. Fixed charges include interest expense and amortization
of debt issuance costs.
(2) Ratio cannot be computed as there were no fixed charges during fiscal year
1993.
(3) Ratio calculated to be a less than one-to-one coverage. The amount of the
deficiency to cover fixed charges is $563,000, $824,000 and $1,841,000 for
the years 1996, 1995 and 1994, respectively.
The following table sets forth the ratios of earnings to fixed charges
for the Operating Partnership for the period August 22, 1996 to December 31,
1996, the year ended December 31, 1997 and for the three months ended March 31,
1998 and 1997.
<PAGE>
Brandywine Operating Partnership, L.P.
Computation of Ratio of Earnings to Fixed Charges
(in thousands)
<TABLE>
<CAPTION>
For the three months
For the period For the ended March 31,
August 22, 1996 to year ended -----------------------
December 31, 1996 December 31, 1997 1997 1998
--------------------- --------------------- ---- ----
<S> <C> <C> <C> <C>
FIXED CHARGE COVERAGE RATIO (1) (2) 2.92 2.87 2.96
===================== ===================== ========================
</TABLE>
(1) The fixed charge coverage ratio represents the number of times fixed charges
were covered by earnings. The ratio is computed by dividing fixed charges
into earnings before extraordinary items, plus fixed charges. Fixed charges
include interest expense and amortization of debt issuance costs.
(2) Ratio calculated to be a less than one-to-one coverage. The amount of the
deficiency to cover fixed charges is $26,000.
USE OF PROCEEDS
Unless otherwise indicated in the accompanying prospectus supplement,
the Company will contribute or otherwise transfer the net proceeds of any sale
of any of its equity securities hereunder to the Operating Partnership in
exchange for additional partnership interests in the Operating Partnership, the
economic terms of which will be substantially identical to the Securities sold.
The Operating Partnership will use such net proceeds and any net proceeds from
the sale of any of its debt securities hereunder for general business purposes
including, without limitation, the repayment of certain outstanding debt and the
acquisition of office and industrial properties.
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<PAGE>
DESCRIPTION OF DEBT SECURITIES
General
The Company conducts substantially all of its business, and indirectly
holds substantially all of its interests in the Properties, through the
Operating Partnership. Consequently, pursuant to this Prospectus, the Operating
Partnership, and not the Company, may from time to time offer the Debt
Securities. The Debt Securities will be direct unsecured obligations of the
Operating Partnership and may be either senior Debt Securities ("Senior
Securities") or subordinated Debt Securities ("Subordinated Securities"). The
Debt Securities will be issued under one or more indentures, each dated as of a
date prior to the issuance of the Debt Securities to which it relates. Senior
Securities and Subordinated Securities may be issued pursuant to separate
indentures (respectively, a "Senior Indenture" and a "Subordinated Indenture"),
in each case between the Operating Partnership and a trustee (a "Trustee"),
which may be the same Trustee, and in the form that has been filed as an exhibit
to the Registration Statement of which this Prospectus is a part, subject to
such amendments or supplements as may be adopted from time to time. The Senior
Indenture and the Subordinated Indenture, as amended or supplemented from time
to time, are sometimes hereinafter referred to collectively as the "Indentures."
The Indentures will be subject to and governed by the Trust Indenture Act of
1939, as amended (the "TIA"). The statements made under this heading relating to
the Debt Securities and the Indentures are summaries of the anticipated material
provisions thereof, do not purport to be complete and are qualified in their
entirety by reference to the Indentures and such Debt Securities.
Capitalized terms used herein and not defined shall have the meanings
assigned to them in the applicable Indenture.
If any Debt Securities issued by the Operating Partnership are rated
below investment grade at the time of issuance, such Debt Securities will be
fully and unconditionally guaranteed by the Company as to payment of principal,
premium, if any, and interest (the "Guarantees").
Terms
The indebtedness represented by the Senior Securities will rank equally
with all other unsecured and unsubordinated indebtedness of the Operating
Partnership. The indebtedness represented by Subordinated Securities will be
subordinated in right of payment to the prior payment in full of the Senior Debt
of the Operating Partnership as described under "--Subordination." The
particular terms of the Debt Securities offered by a prospectus supplement will
be described in the applicable prospectus supplement, along with any applicable
modifications of or additions to the general terms of the Debt Securities as
described herein and in the applicable Indenture and any applicable federal
income tax considerations. Accordingly, for a description of the terms of any
series of Debt Securities, reference must be made to both the prospectus
supplement relating thereto and the description of the Debt Securities set forth
in this Prospectus.
Except as set forth in any prospectus supplement, the Debt Securities
may be issued without limit as to aggregate principal amount, in one or more
series, in each case as established from time to time by the Operating
Partnership or as set forth in the applicable Indenture or in one or more
indentures supplemental to such Indenture. All Debt Securities of one series
need not be issued at the same time and, unless otherwise provided, a series may
be reopened, without the consent of the holders of the Debt Securities of such
series, for issuance of additional Debt Securities of such series.
Each Indenture will provide that the Operating Partnership may, but
need not, designate more than one Trustee thereunder, each with respect to one
or more series of Debt Securities. Any Trustee under an Indenture may resign or
be removed with respect to one or more series of Debt Securities and a successor
Trustee may be appointed to act with respect to such series. In the event that
two or more persons are acting as Trustee with respect to different series of
Debt Securities, each such Trustee shall be a Trustee of a trust under the
applicable Indenture separate and apart from the trust administered by any other
Trustee, and, except as otherwise indicated herein, any action described herein
to be taken by each Trustee may be taken by each such Trustee with respect to,
and only with respect to, the one or more series of Debt Securities for which it
is Trustee under the applicable Indenture.
-15-
<PAGE>
The following summaries set forth certain general terms and provisions
of the Indentures and the Debt Securities. The prospectus supplement relating to
the series of Debt Securities being offered will contain further terms of such
Debt Securities, including the following specific terms:
(1) The title of such Debt Securities and whether such Debt
Securities are Senior Securities or Subordinated Securities;
(2) The aggregate principal amount of such Debt Securities and any
limit on such aggregate principal amount;
(3) The price (expressed as a percentage of the principal amount
thereof) at which such Debt Securities will be issued and, if
other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of
acceleration of the maturity thereof;
(4) The date or dates, or the method for determining such date or
dates, on which the principal of such Debt Securities will be
payable;
(5) The rate or rates (which may be fixed or variable), or the
method by which such rate or rates shall be determined, at
which such Debt Securities will bear interest, if any;
(6) The date or dates, or the method for determining such date or
dates, from which any such interest will accrue, the dates on
which any such interest will be payable, the record dates for
such interest payment dates, or the method by which such dates
shall be determined, the persons to whom such interest shall
be payable, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve
30-day months;
(7) The place or places where the principal of (and premium, if
any) and interest, if any, on such Debt Securities will be
payable, where such Debt Securities may be surrendered for
conversion or registration of transfer or exchange and where
notices or demands to or upon the Operating Partnership in
respect of such Debt Securities and the applicable Indenture
may be served;
(8) The period or periods, if any, within which, the price or
prices at which and the other terms and conditions upon which
such Debt Securities may, pursuant to any optional or
mandatory redemption provisions, be redeemed, as a whole or in
part, at the option of the Operating Partnership;
(9) The obligation, if any, of the Operating Partnership to
redeem, repay or purchase such Debt Securities pursuant to any
sinking fund or analogous provision or at the option of a
holder thereof, and the period or periods within which, the
price or prices at which and the other terms and conditions
upon which such Debt Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such obligation;
(10) If other than U.S. dollars, the currency or currencies in
which such Debt Securities are denominated and payable, which
may be a foreign currency or units of two or more foreign
currencies or a composite currency or currencies, and the
terms and conditions relating thereto;
(11) Whether the amount of payments of principal of (and premium,
if any) or interest, if any, on such Debt Securities may be
determined with reference to an index, formula or other method
(which index, formula or method may, but need not be, based on
a currency, currencies, currency unit or units, or composite
currency or currencies) and the manner in which such amounts
shall be determined;
(12) Whether such Debt Securities will be issued in certificated or
book-entry form and, if in book entry form, the identity of
the depository for such Debt Securities;
-16-
<PAGE>
(13) Whether such Debt Securities will be in registered or bearer
form and, if in registered form, the denominations thereof if
other than $1,000 and any integral multiple thereof and, if in
bearer form, the denominations thereof and terms and
conditions relating thereto;
(14) The applicability, if any, of the defeasance and covenant
defeasance provisions described herein or set forth in the
applicable Indenture, or any modification thereof;
(15) Whether and under what circumstances the Operating Partnership
will pay any additional amounts on such Debt Securities in
respect of any tax, assessment or governmental charge and, if
so, whether the Company will have the option to redeem such
Debt Securities in lieu of making such payment;
(16) Any deletions from, modifications of or additions to the
events of default or covenants of the Operating Partnership,
to the extent different from those described herein or set
forth in the applicable Indenture with respect to such Debt
Securities, and any change in the right of any Trustee or any
of the holders to declare the principal amount of any of such
Debt Securities due and payable;
(17) With respect to any Debt Securities that provide for optional
redemption or prepayment upon the occurrence of certain events
(such as a change of control of the Operating Partnership),
(i) the possible effects of such provisions on the market
price of the Operating Partnership's or the Company's
securities or in deterring certain mergers, tender offers or
other takeover attempts, and the intention of the Operating
Partnership to comply with the requirements of Rule 14e-1
under the Exchange Act and any other applicable securities
laws in connection with such provisions; (ii) whether the
occurrence of the specified events may give rise to
cross-defaults on other indebtedness such that payment on such
Debt Securities may be effectively subordinated; and (iii) the
existence of any limitation on the Operating Partnership's
financial or legal ability to repurchase such Debt Securities
upon the occurrence of such an event (including, if true, the
lack of assurance that such a repurchase can be effected) and
the impact, if any, under the Indenture of such a failure,
including whether and under what circumstances such a failure
may constitute an Event of Default;
(18) With respect to any Debt Securities rated below investment
grade at the time of issuance, the Guarantees (the "Guaranteed
Securities"); and
(19) Any other terms of such Debt Securities not inconsistent with
the provisions of the applicable Indenture.
If so provided in the applicable prospectus supplement, the Debt
Securities may be issued at a discount below their principal amount and provide
for less than the entire principal amount thereof to be payable upon declaration
of acceleration of the maturity thereof ("Original Issue Discount Securities").
In such cases, any special U.S. federal income tax, accounting and other
considerations applicable to Original Issue Discount Securities will be
described in the applicable prospectus supplement.
Except as described under "Merger, Consolidation or Sale of Assets" or
as may be set forth in any prospectus supplement, the Debt Securities will not
contain any provisions that would limit the ability of the Operating Partnership
to incur indebtedness or that would afford holders of Debt Securities protection
in the event of (i) a highly leveraged or similar transaction involving the
Operating Partnership, the management of the Operating Partnership or the
Company, or any affiliate of any such party, (ii) a change of control, or (iii)
a reorganization, restructuring, merger or similar transaction involving the
Operating Partnership that may adversely affect the holders of the Debt
Securities. In addition, subject to the limitations set forth under "Merger,
Consolidation or Sale of Assets," the Operating Partnership may, in the future,
enter into certain transactions, such as the sale of all or substantially all of
its assets or the merger or consolidation of the Operating Partnership, that
would increase the amount of the Operating Partnership's indebtedness or
substantially reduce or eliminate the Operating Partnership's indebtedness or
substantially reduce or eliminate the Operating Partnership's assets, which may
have an adverse effect on the Operating Partnership's ability to service its
indebtedness, including the Debt Securities. Restrictions on ownership and
transfers of the Common Shares and Preferred Shares are designed to preserve the
Company's status
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<PAGE>
as a REIT and, therefore, may act to prevent or hinder a change of control. See
"Description of Shares of Beneficial Interest--Restrictions on Transfer."
Reference is made to the applicable prospectus supplement for information with
respect to any deletions from, modifications of, or additions to, the events of
default or covenants that are described below, including any addition of a
covenant or other provision providing event risk or similar protection.
Guarantees
The Company will fully, unconditionally and irrevocably guarantee the due
and punctual payment of principal of, premium, if any, and interest on any Debt
Securities rated below investment grade at the time of issuance by the Operating
Partnership, and the due and punctual payment of any sinking fund payments
thereon, when and as the same shall become due and payable, whether at a
maturity date, by declaration of acceleration, call for redemption or otherwise.
Denomination, Registration and Transfer
Unless otherwise described in the applicable prospectus supplement, the
Debt Securities of any series will be issuable in denominations of $1,000 and
integral multiples thereof.
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for any
authorized denomination of other Debt Securities of the same series and of a
like aggregate principal amount and tenor upon surrender of such Debt Securities
at the corporate trust office of the applicable Trustee or at the office of any
transfer agent designated by the Operating Partnership for such purpose. In
addition, subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series may be surrendered for
registration of transfer or exchange thereof at the corporate trust office of
the applicable Trustee or at the office of any transfer agent designated by the
Operating Partnership for such purpose. Every Debt Security surrendered for
registration of transfer or exchange must be duly endorsed or accompanied by a
written instrument of transfer, and the person requesting such action must
provide evidence of title and identity satisfactory to the applicable Trustee or
transfer agent. No service charge will be made for any registration of transfer
or exchange of any Debt Securities, but the Trustee or the Operating Partnership
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. If the applicable prospectus supplement
refers to any transfer agent (in addition to the applicable Trustee) initially
designated by the Operating Partnership with respect to any series of Debt
Securities, the Operating Partnership may at any time rescind the designation of
any such transfer agent or approve a change in the location through which any
such transfer agent acts, except that the Operating Partnership will be required
to maintain a transfer agent in each place of payment for such series. The
Operating Partnership may at any time designate additional transfer agents with
respect to any series of Debt Securities.
Neither the Operating Partnership nor any Trustee shall be required (i)
to issue, register the transfer of or exchange Debt Securities of any series
during a period beginning at the opening of business 15 days before the day of
mailing of a notice of redemption of any Debt Securities that may be selected
for redemption and ending at the close of business on the day of such mailing;
(ii) to register the transfer of or exchange any Debt Security, or portion
thereof, so selected for redemption, in whole or in part, except the unredeemed
portion of any Debt Security being redeemed in part; or (iii) to issue, register
the transfer of or exchange any Debt Security that has been surrendered for
repayment at the option of the holder, except the portion, if any, of such Debt
Security not to be so repaid.
Merger, Consolidation or Sale of Assets
The Indentures will provide that the Operating Partnership may, without
the consent of the holders of any outstanding Debt Securities, consolidate with,
or sell, lease or convey all or substantially all of its assets to, or merge
with or into, any other entity provided that (i) either the Operating
Partnership shall be the continuing entity, or the successor entity (if other
than the Operating Partnership) formed by or resulting from any such
consolidation or merger or which shall have received the transfer of such
assets, shall expressly assume (A) the Operating Partnership's obligations to
pay principal of (and premium, if any) and interest on all of the Debt
Securities and (B) the due and punctual performance and observance of all of the
covenants and conditions contained in each Indenture; (ii) immediately after
giving effect to such transaction and treating any indebtedness that becomes an
obligation of the Operating Partnership or any subsidiary as a result thereof as
having been incurred by the Operating Partnership or such subsidiary at the time
of such transaction, no event of default under the Indentures, and no event
which, after
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notice or the lapse of time, or both, would become such an event of default,
shall have occurred and be continuing; and (iii) an officers' certificate and
legal opinion covering such conditions shall be delivered to each Trustee.
Certain Covenants
Existence. Except as permitted under "--Merger, Consolidation or Sale
of Assets," the Indentures will require the Operating Partnership to do or cause
to be done all things necessary to preserve and keep in full force and effect
its existence, rights and franchises; provided, however, that the Operating
Partnership shall not be required to preserve any right or franchise if it
determines that the preservation thereof is no longer desirable in the conduct
of its business.
Maintenance of Properties. The Indentures will require the Operating
Partnership to cause all of its material properties used or useful in the
conduct of its business or the business of any subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Operating Partnership may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that the Operating Partnership and its subsidiaries shall not
be prevented from selling or otherwise disposing of their properties for value
in the ordinary course of business.
Insurance. The Indentures will require the Operating Partnership to
cause each of its and its subsidiaries' insurable properties to be insured
against loss or damage at least equal to their then full insurable value with
insurers of recognized responsibility and, if described in the applicable
prospectus supplement, having a specified rating from a recognized insurance
rating service.
Payment of Taxes and Other Claims. The Indentures will require the
Operating Partnership to pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all taxes, assessments and
governmental charges levied or imposed upon it or any subsidiary or upon the
income, profits or property of the Operating Partnership or any subsidiary and
(ii) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Operating Partnership or any
subsidiary; provided, however, that the Operating Partnership 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.
Additional Covenants. Any additional covenants of the Operating
Partnership with respect to any series of Debt Securities will be set forth in
the prospectus supplement relating thereto.
Events of Default, Notice and Waiver
Unless otherwise provided in the applicable prospectus supplement, each
Indenture will provide that the following events are "Events of Default" with
respect to any series of Debt Securities issued thereunder: (i) default for 30
days in the payment of any installment of interest on any Debt Security of such
series; (ii) default in the payment of principal of (or premium, if any, on) any
Debt Security of such series at its maturity; (iii) default in making any
sinking fund payment as required for any Debt Security of such series; (iv)
default in the performance or breach of any other covenant or warranty of the
Operating Partnership contained in the Indenture (other than a covenant added to
the Indenture solely for the benefit of a series of Debt Securities issued
thereunder other than such series), continued for 60 days after written notice
as provided in the applicable Indenture; (v) a default under any bond,
debenture, note or other evidence of indebtedness for money borrowed (except
mortgage indebtedness) by the Operating Partnership or any of its subsidiaries
in an aggregate principal amount in excess of $25,000,000 or under any indenture
or instrument under which there may be issued or by which there may be secured
or evidenced any indebtedness for money borrowed (except mortgage indebtedness)
by the Operating Partnership or any of its subsidiaries in an aggregate
principal amount in excess of $25,000,000, whether such indebtedness exists on
the date of such Indenture or shall thereafter be created, which default shall
have resulted in such indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable or
such obligations being accelerated, without such acceleration having been
rescinded or annulled; (vi) certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator or trustee of the
Operating Partnership or any Significant Subsidiary of the Operating
Partnership; and (vii) any other event of default provided with respect to a
particular series of Debt Securities. The term "Significant Subsidiary" has the
meaning ascribed to such term in Regulation S-X promulgated under the Securities
Act of 1933, as amended (the "Securities Act").
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If an Event of Default under any Indenture with respect to Debt
Securities of any series at the time outstanding occurs and is continuing, then
in every such case the applicable Trustee or the holders of not less than 25% in
principal amount of the Debt Securities of that series will have the right to
declare the principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities or indexed securities, such portion of the
principal amount as may be specified in the terms thereof) of all the Debt
Securities of that series to be due and payable immediately by written notice
thereof to the Operating Partnership (and to the applicable Trustee if given by
the holders). However, at any time after such a declaration of acceleration with
respect to Debt Securities of such series (or of all Debt Securities then
outstanding under any Indenture, as the case may be) has been made, but before a
judgment or decree for payment of the money due has been obtained by the
applicable Trustee, the holders of not less than a majority in principal amount
of outstanding Debt Securities of such series (or of all Debt Securities then
outstanding under the applicable Indenture, as the case may be) may rescind and
annul such declaration and its consequences if (i) the Operating Partnership
shall have deposited with the applicable Trustee all required payments of the
principal of (and premium, if any) and interest on the Debt Securities of such
series (or of all Debt Securities then outstanding under the applicable
Indenture, as the case may be), plus certain fees, expenses, disbursements and
advances of the applicable Trustee; and (ii) all events of default, other than
the non- payment of accelerated principal (or specified portion thereof), with
respect to Debt Securities of such series (or of all Debt Securities then
outstanding under the applicable Indenture, as the case may be) have been cured
or waived as provided in such Indenture. The Indentures will also provide that
the holders of not less than a majority in principal amount of the outstanding
Debt Securities of any series (or of all Debt Securities then outstanding under
the applicable Indenture, as the case may be) may waive any past default with
respect to such series and its consequences, except a default (i) in the payment
of the principal of (or premium, if any) or interest on any Debt Security of
such series; or (ii) in respect of a covenant or provision contained in the
applicable Indenture that cannot be modified or amended without the consent of
the holder of each outstanding Debt Security affected thereby.
The Indentures will require each Trustee to give notice to the holders
of Debt Securities within 90 days of a default under the applicable Indenture
unless such default shall have been cured or waived; provided, however, that
such Trustee may withhold notice to the holders of any series of Debt Securities
of any default with respect to such series (except a default in the payment of
the principal of (or premium, if any) or interest on any Debt Security of such
series or in the payment of any sinking fund installment in respect of any Debt
Security of such series) if specified responsible officers of such Trustee
consider such withholding to be in the interest of such holders.
The Indentures will provide that no holders of Debt Securities of any
series may institute any proceedings, judicial or otherwise, with respect to
such Indenture or for any remedy thereunder, except in the case of failure of
the applicable Trustee, for 60 days, to act after it has received a written
request to institute proceedings in respect of an event of default from the
holders of not less than 25% in principal amount of the outstanding Debt
Securities of such series, as well as an offer of indemnity reasonably
satisfactory to it. This provision will not prevent, however, any holder of Debt
Securities from instituting suit for the enforcement of payment of the principal
of (and premium, if any) and interest on such Debt Securities at the respective
due dates thereof.
The Indentures will provide that, subject to provisions in each
Indenture relating to its duties in case of default, a Trustee will be under no
obligation to exercise any of its rights or powers under an Indenture at the
request or direction of any holders of any series of Debt Securities then
outstanding under such Indenture, unless such holders shall have offered to the
Trustee thereunder reasonable security or indemnity. The holders of not less
than a majority in principal amount of the outstanding Debt Securities of any
series (or of all Debt Securities then outstanding under an Indenture, as the
case may be) shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the applicable Trustee, or
of exercising any trust or power conferred upon such Trustee. However, a Trustee
may refuse to follow any direction which is in conflict with any law or the
applicable Indenture, which may involve such Trustee in personal liability or
which may be unduly prejudicial to the holders of Debt Securities of such series
not joining therein.
Within 120 days after the close of each fiscal year, the Operating
Partnership will be required to deliver to each Trustee a certificate, signed by
one of several specified officers of the Operating Partnership, stating whether
or not such officer has knowledge of any default under the applicable Indenture
and, if so, specifying each such default and the nature and status thereof.
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Modification of the Indentures
Modifications and amendments of an Indenture will be permitted to be
made only with the consent of the holders of not less than a majority in
principal amount of all outstanding Debt Securities issued under such Indenture
affected by such modification or amendment; provided, however, that no such
modification or amendment may, without the consent of the holder of each such
Debt Security affected thereby, (i) change the stated maturity of the principal
of, or any installment of interest (or premium, if any) on, any such Debt
Security; (ii) reduce the principal amount of, or the rate or amount of interest
on, or any premium payable on redemption of, any such Debt Security, or reduce
the amount of principal of an Original Issue Discount Security that would be due
and payable upon declaration of acceleration of the maturity thereof or would be
provable in bankruptcy, or adversely affect any right of repayment of the holder
of any such Debt Security; (iii) change the place of payment, or the coin or
currency, for payment of principal of, premium, if any, or interest on any such
Debt Security; (iv) impair the right to institute suit for the enforcement of
any payment on or with respect to any such Debt Security; (v) reduce the
above-stated percentage of any outstanding Debt Securities necessary to modify
or amend the applicable Indenture with respect to such Debt Securities, to waive
compliance with certain provisions thereof or certain defaults and consequences
thereunder or to reduce the quorum or voting requirements set forth in the
applicable Indenture; (vi) modify or affect in any manner adverse to the holders
of Guaranteed Securities the terms and conditions of the obligations of the
Company in respect of the payment of principal, premium, if any, and interest on
the Guaranteed Securities; or (vii) modify any of the foregoing provisions or
any of the provisions relating to the waiver of certain past defaults or certain
covenants, except to increase the required percentage to effect such action or
to provide that certain other provisions may not be modified or waived without
the consent of the holder of such Debt Security.
The holders of a majority in aggregate principal amount of the
outstanding Debt Securities of each series may, on behalf of all holders of Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Operating Partnership with certain restrictive covenants of
the applicable Indenture.
Modifications and amendments of an Indenture will be permitted to be
made by the Operating Partnership and the respective Trustee thereunder without
the consent of any holder of Debt Securities for any of the following purposes:
(i) to evidence the succession of another person to the Operating Partnership as
obligor or the Company as guarantor under such Indenture; (ii) to add to the
covenants of the Operating Partnership for the benefit of the holders of all or
any series of Debt Securities or to surrender any right or power conferred upon
the Operating Partnership in such Indenture; (iii) to add events of default for
the benefit of the holders of all or any series of Debt Securities; (iv) to add
or change any provisions of an Indenture to facilitate the issuance of, or to
liberalize certain terms of, Debt Securities in bearer form, or to permit or
facilitate the issuance of Debt Securities in uncertificated form, provided that
such action shall not adversely affect the interests of the holders of the Debt
Securities of any series in any material respect; (v) to change or eliminate any
provisions of an Indenture, provided that any such change or elimination shall
become effective only when there are no Debt Securities outstanding of any
series created prior thereto which are entitled to the benefit of such
provision; (vi) to secure the Debt Securities; (vii) to establish the form or
terms of Debt Securities of any series; (viii) to provide for the acceptance of
appointment by a successor Trustee or facilitate the administration of the
trusts under an Indenture by more than one Trustee; (ix) to cure any ambiguity,
defect or inconsistency in an Indenture, provided that such action shall not
adversely affect the interests of holders of Debt Securities of any series
issued under such Indenture; or (x) to supplement any of the provisions of an
Indenture to the extent necessary to permit or facilitate defeasance and
discharge of any series of such Debt Securities, provided that such action shall
not adversely affect the interests of the holders of the outstanding Debt
Securities of any series. In addition, with respect to Guaranteed Securities,
without the consent of any holder of Guaranteed Securities, the Company, or a
subsidiary thereof, may directly assume the due and punctual payment of the
principal of, any premium and interest on all the Guaranteed Securities and the
performance of every covenant of the Indenture on the part of the Operating
Partnership to be performed or observed. Upon any such assumption, the Company
or such subsidiary shall succeed to, and be substituted for and may exercise
every right and power of, the Operating Partnership under the Indenture with the
same effects if the Company or such subsidiary had been the issuer of the
Guaranteed Securities and the Operating Partnership shall be released from all
obligations and covenants with respect to the Guaranteed Securities. No such
assumption shall be permitted unless the Company has delivered to the Trustee
(i) an officers' certificate and an opinion of counsel, stating, among other
things, that the Guarantee and all other covenants of the Company in the
Indenture remain in full force and effect and (ii) an opinion of independent
counsel that the holders of Guaranteed Securities shall have no United States
federal tax consequences as a result of such assumption, and that, if any Debt
Securities are then listed on a stock exchange, that such Debt Securities shall
not be delisted as a result of such assumption.
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The Indentures will provide that in determining whether the holders of
the requisite principal amount of outstanding Debt Securities of a series have
given any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
shall be deemed to be outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity thereof; (ii) the principal amount
of any Debt Security denominated in a foreign currency that shall be deemed
outstanding shall be the U.S. dollar equivalent, determined on the issue date
for such Debt Security, of the principal amount (or, in the case of an Original
Issue Discount Security, the U.S. dollar equivalent on the issue date of such
Debt Security of the amount determined as provided in (i) above); (iii) the
principal amount of an indexed security that shall be deemed outstanding shall
be the principal face amount of such indexed security at original issuance,
unless otherwise provided with respect to such indexed security pursuant to such
Indenture; and (iv) Debt Securities owned by the Operating Partnership or any
other obligor upon the Debt Securities or any affiliate of the Operating
Partnership or of such other obligor shall be disregarded.
The Indentures will contain provisions for convening meetings of the
holders of Debt Securities of a series. A meeting will be permitted to be called
at any time by the applicable Trustee, and also, upon request, by the Operating
Partnership or the holders of at least 10% in principal amount of the
outstanding Debt Securities of such series, in any such case upon notice given
as provided in such Indenture. Except for any consent that must be given by the
holder of each Debt Security affected by certain modifications and amendments of
an Indenture, any resolution presented at a meeting or adjourned meeting duly
reconvened at which a quorum is present may be adopted by the affirmative vote
of the holders of a majority in principal amount of the outstanding Debt
Securities of that series; provided, however, that, except as referred to above,
any resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that 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 Debt Securities of a series may be adopted at a
meeting or adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal amount
of the outstanding Debt Securities of that series. Any resolution passed or
decision taken at any meeting of holders of Debt Securities of any series duly
held in accordance with an Indenture will be binding on all holders of Debt
Securities of that series. The quorum at any meeting called to adopt a
resolution, and at any reconvened meeting, will be persons holding or
representing a majority in principal amount of the outstanding Debt Securities
of a series; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which may be given by the holders of
not less than a specified percentage in principal amount of the outstanding Debt
Securities of a series, the persons holding or representing such specified
percentage in principal amount of the outstanding Debt Securities of such series
will constitute a quorum.
Notwithstanding the foregoing provisions, the Indentures will provide
that if any action is to be taken at a meeting of holders of Debt Securities of
any series with respect to any request, demand, authorization, direction,
notice, consent, waiver and other action that such Indenture expressly provides
may be made, given or taken by the holders of a specified percentage in
principal amount of all outstanding Debt Securities affected thereby, or of the
holders of such series and one or more additional series: (i) there shall be no
minimum quorum requirement for such meeting; and (ii) the principal amount of
the outstanding Debt Securities of such series that vote in favor of such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been made,
given or taken under such Indenture.
Subordination
Unless otherwise provided in the applicable prospectus supplement,
Subordinated Securities will be subject to the following subordination
provisions.
Upon any distribution to creditors of the Operating Partnership in a
liquidation, dissolution or reorganization, the payment of the principal of and
interest on any Subordinated Securities will be subordinated to the extent
provided in the applicable Indenture in right of payment to the prior payment in
full of all Senior Debt (as defined below), but the obligation of the Operating
Partnership to make payments of the principal of and interest on such
Subordinated Securities will not otherwise be affected. No payment of principal
or interest will be permitted to be made on Subordinated Securities at any time
if a default on Senior Debt exists that permits the holders of such Senior Debt
to accelerate its maturity and the default is the subject of judicial
proceedings or the Operating
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Partnership receives notice of the default. After all Senior Debt is paid in
full and until the Subordinated Securities are paid in full, holders will be
subrogated to the rights of holders of Senior Debt to the extent that
distributions otherwise payable to holders have been applied to the payment of
Senior Debt. The Subordinated Indenture will not restrict the amount of Senior
Debt or other indebtedness of the Operating Partnership and its subsidiaries. As
a result of these subordination provisions, in the event of a distribution of
assets upon insolvency, holders of Subordinated Indebtedness may recover less,
ratably, than general creditors of the Operating Partnership.
Senior Debt will be defined in the applicable Indenture as the
principal of and interest on, or substantially similar payments to be made by
the Operating Partnership in respect of, the following, whether outstanding at
the date of execution of the applicable Indenture or thereafter incurred,
created or assumed: (i) indebtedness of the Operating Partnership for money
borrowed or represented by purchase-money obligations; (ii) indebtedness of the
Operating Partnership evidenced by notes, debentures, or bonds, or other
securities issued under the provisions of an indenture, fiscal agency agreement
or other agreement; (iii) obligations of the Operating Partnership as lessee
under leases of property either made as part of any sale and leaseback
transaction to which the Operating Partnership is a party or otherwise; (iv)
indebtedness, obligations and liabilities of others in respect of which the
Operating Partnership is liable contingently or otherwise to pay or advance
money or property or as guarantor, endorser or otherwise or which the Operating
Partnership has agreed to purchase or otherwise acquire; and (v) any binding
commitment of the Operating Partnership to fund any real estate investment or to
fund any investment in any entity making such real estate investment, in each
case other than (A) any such indebtedness, obligation or liability referred to
in clauses (i) through (iv) above as to which, in the instrument creating or
evidencing the same pursuant to which the same is outstanding, it is provided
that such indebtedness, obligation or liability is not superior in right of
payment to the Subordinated Securities or ranks without preference to the
Subordinated Securities; (B) any such indebtedness, obligation or liability
which is subordinated to indebtedness of the Operating Partnership to
substantially the same extent as or to a greater extent than the Subordinated
Securities are subordinated; and (C) the Subordinated Securities. There will not
be any restrictions in any Indenture relating to Subordinated Securities upon
the creation of additional Senior Debt.
If this Prospectus is being delivered in connection with a series of
Subordinated Securities, the accompanying prospectus supplement or the
information incorporated herein by reference will set forth the approximate
amount of Senior Debt outstanding as of the end of the Operating Partnership's
most recent fiscal quarter.
Discharge, Defeasance and Covenant Defeasance
Unless otherwise indicated in the applicable prospectus supplement, the
Operating Partnership will be permitted, at its option, to discharge certain
obligations to holders of any series of Debt Securities issued under any
Indenture that have not already been delivered to the applicable Trustee for
cancellation and that either have become due and payable or will become due and
payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the applicable Trustee, in trust, funds in such
currency or currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are payable in an amount sufficient to
pay the entire indebtedness on such Debt Securities in respect of principal (and
premium, if any) and interest to the date of such deposit (if such Debt
Securities have become due and payable) or to the stated maturity or redemption
date, as the case may be.
The Indentures will provide that, unless otherwise indicated in the
applicable prospectus supplement, the Operating Partnership may elect either (i)
to defease and discharge itself and the Company (if such Debt Securities are
Guaranteed Securities) from any and all obligations with respect to such Debt
Securities (except for the obligation to pay additional amounts, if any, upon
the occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such Debt Securities and the obligations to register the
transfer or exchange of such Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to maintain an office or agency in
respect of such Debt Securities, to hold moneys for payment in trust)
("defeasance"); or (ii) to release itself and the Company (if such Debt
Securities are Guaranteed Securities) from their obligations with respect to
such Debt Securities under the applicable Indenture (being the restrictions
described under "--Certain Covenants") or, if provided in the applicable
prospectus supplement, their obligations with respect to any other covenant, and
any omission to comply with such obligations shall not constitute an event of
default with respect to such Debt Securities ("covenant defeasance"), in either
case upon the irrevocable deposit by the Operating Partnership or the Company
(if the Debt Securities are Guaranteed Securities) with the applicable Trustee,
in trust, of
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an amount, in such currency or currencies, currency unit or units or composite
currency or currencies in which such Debt Securities are payable at stated
maturity, or Government Obligations (as defined below), or both, applicable to
such Debt Securities, which through the scheduled payment of principal and
interest in accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium, if any) and interest on such
Debt Securities, and any mandatory sinking fund or analogous payments thereon,
on the scheduled due dates therefor.
Such a trust will only be permitted to be established if, among other
things, the Operating Partnership or the Company (if such Debt Securities are
Guaranteed Securities) has delivered to the applicable Trustee an opinion of
counsel (as specified in the applicable Indenture) to the effect that the
holders of such Debt Securities will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to U.S. federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred, and such opinion of counsel,
in the case of defeasance, will be required to refer to and be based upon a
ruling received from or published by the Internal Revenue Service or a change in
applicable United States federal income tax law occurring after the date of the
Indenture. In the event of such defeasance, the holders of such Debt Securities
would thereafter be able to look only to such trust fund for payment of
principal (and premium, if any) and interest.
"Government Obligations" means securities that are (i) direct
obligations of the United States of America or the government which issued the
foreign currency in which the Debt Securities of a particular series are
payable, for the payment of which its full faith and credit is pledged; or (ii)
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued
the foreign currency in which the Debt Securities of such series are payable,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt; provided,
however, that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.
Unless otherwise provided in the applicable prospectus supplement, if
after the Operating Partnership or the Company (if such Debt Securities are
Guaranteed Securities) has deposited funds and/or Government Obligations to
effect defeasance or covenant defeasance with respect to Debt Securities of any
series, (i) the holder of a Debt Security of such series is entitled to, and
does, elect pursuant to the applicable Indenture or the terms of such Debt
Security to receive payment in a currency, currency unit or composite currency
other than that in which such deposit has been made in respect of such Debt
Security; or (ii) a Conversion Event (as defined below) occurs in respect of the
currency, currency unit or composite currency in which such deposit has been
made, the indebtedness represented by such Debt Security will be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any) and interest on such Debt Security as they
become due out of the proceeds yielded by converting the amount so deposited in
respect of such Debt Security into the currency, currency unit or composite
currency in which such Debt Security becomes payable as a result of such
election or such cessation of usage based on the applicable market exchange
rate. "Conversion Event" means the cessation of use of (i) a currency, currency
unit or composite currency both by the government of the country which issued
such currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community; (ii) the
European Currency Unit ("ECU") both within the European Monetary System and for
the settlement of transactions by public institutions of or within the European
Communities; or (iii) any currency unit or composite currency other than the ECU
for the purposes for which it was established. Unless otherwise provided in the
applicable prospectus supplement, all payments of principal of (and premium, if
any) and interest on any Debt Security that is payable in a foreign currency
that ceases to be used by its government of issuance shall be made in U.S.
dollars.
In the event the Operating Partnership effects covenant defeasance with
respect to any Debt Securities and such Debt Securities are declared due and
payable because of the occurrence of any event of default other than the event
of default described in clause (iv) under "--Events of Default, Notice and
Waiver" with respect to specified sections of an Indenture (which sections would
no longer be applicable to such Debt Securities) or described in clause (vii)
under "--Events of Default, Notice and Waiver" with respect to any other
covenant as to which there has
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been covenant defeasance, the amount in such currency, currency unit or
composite currency in which such Debt Securities are payable, and Government
Obligations on deposit with the applicable Trustee, will be sufficient to pay
amounts due on such Debt Securities at the time of their stated maturity but may
not be sufficient to pay amounts due on such Debt Securities at the time of the
acceleration resulting from such event of default. However, the Operating
Partnership and the Company (if such Debt Securities are Guaranteed Securities)
would remain liable to make payment of such amounts due at the time of
acceleration.
The applicable prospectus supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance, including
any modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
No Conversion Rights
The Debt Securities will not be convertible into or exchangeable for
any shares of beneficial interest of the Company or any equity interest in the
Operating Partnership.
Payment
Unless otherwise specified in the applicable prospectus supplement, the
principal of (and applicable premium, if any) and interest on any series of Debt
Securities will be payable at the corporate trust office of the Trustee, the
address of which will be stated in the applicable prospectus supplement;
provided, however, that, at the option of the Operating Partnership, payment of
interest may be made by check mailed to the address of the person entitled
thereto as it appears in the applicable register for such Debt Securities or by
wire transfer of funds to such person at an account maintained within the United
States.
All moneys paid by the Operating Partnership to a paying agent or a
Trustee for the payment of the principal of or any premium or interest on any
Debt Security which remain unclaimed at the end of two years after such
principal, premium or interest has become due and payable will be repaid to the
Operating Partnership, and the holder of such Debt Security thereafter may look
only to the Operating Partnership for payment thereof.
Global Securities
The Debt Securities of a series may be issued in whole or in part in
the form of one or more global securities (the "Global Securities") that will be
deposited with, or on behalf of, a depositary identified in the applicable
prospectus supplement relating to such series. Global Securities may be issued
in either registered or bearer form and in either temporary or permanent form.
The specific terms of the depositary arrangement with respect to a series of
Debt Securities will be described in the applicable prospectus supplement
relating to such series.
DESCRIPTION OF SHARES OF BENEFICIAL INTEREST
The following summary of the terms of the shares of beneficial interest
of the Company does not purport to be complete and is subject to and qualified
in its entirety by reference to the Declaration of Trust and Bylaws of the
Company, as amended, which are incorporated by reference into the Registration
Statement of which this Prospectus is a part.
General
The Declaration of Trust of the Company provides that the Company is
authorized to issue up to 105,000,000 shares of beneficial interest of the
Company ("Shares"), consisting of 100,000,000 Common Shares and 5,000,000
Preferred Shares. The Declaration of Trust may be amended by the Board of
Trustees, without shareholder approval, to increase or decrease the aggregate
number of authorized Shares of any class. The authorized Common Shares and
Preferred Shares are available for future issuance without further action by the
Company's shareholders, unless such action is required by applicable law or the
rules of any stock exchange or automated quotation system on which the Company's
securities may be listed or traded.
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Both Maryland statutory law governing real estate investment trusts
organized under Maryland law (the "Maryland REIT Law") and the Company's
Declaration of Trust provide that no shareholder of the Company will be
personally liable, by reason of his status as a shareholder of the Company, for
any obligation of the Company. The Company's Bylaws further provide that the
Company shall indemnify any shareholder or former shareholder against any claim
or liability to which such shareholder may become subject by reason of his being
or having been a shareholder, and that the Company shall reimburse each
shareholder who has been successful, on the merits or otherwise, in the defense
of a proceeding to which he has been made a party by reason of his status as
such for all reasonable expenses incurred by him in connection with any such
claim or liability. In addition, it is a requirement of the Declaration of Trust
that all written contracts to which the Company is a party shall include a
provision to the effect that shareholders shall not be personally liable
thereon.
The Declaration of Trust provides that, subject to the provisions of
any class or series of preferred shares then outstanding and to the mandatory
provisions of applicable law, the shareholders are entitled to vote only on the
following matters: (i) election or removal of Trustees; (ii) amendment of the
Declaration of Trust (other than an amendment to increase or decrease the
aggregate number of authorized Shares of any class); (iii) a determination by
the Trust to invest in commodities contracts (other than interest rate futures
intended to hedge the Company against interest rate risk), engage in securities
trading (as compared to investment) activities or hold properties primarily for
sale to customers in the ordinary course of business; and (iv) a merger of the
Company with another entity. Except with respect to the foregoing, no action
taken by the shareholders of the Company at any meeting shall in any way bind
the Board of Trustees.
Transfer Agent and Registrar
The transfer agent and registrar for the Common Shares is The Bank of
New York.
Shares
Common Shares of Beneficial Interest
Each outstanding Common Share entitles the holder thereof to one vote
on all matters submitted to a vote of shareholders, including the election of
Trustees. There is no cumulative voting in the election of Trustees, which means
that, subject to such voting rights as may be granted by the Board of Trustees
in connection with future issuances of Preferred Shares, the holders of a
majority of the outstanding Common Shares can elect all of the Trustees then
standing for election. Subject to such preferential rights as may be granted by
the Board of Trustees of the Company in connection with the future issuance, if
any, of Preferred Shares, holders of Common Shares are entitled to such
distributions as may be declared from time to time by the Board of Trustees out
of funds legally available therefor.
Holders of Common Shares have no conversion, exchange, redemption or
preemptive rights to subscribe to any securities of the Company. All outstanding
Common Shares will be fully paid and nonassessable. In the event of any
liquidation, dissolution or winding-up of the affairs of the Company, subject to
such preferential rights as may be granted by the Board of Trustees of the
Company in connection with the future issuance, if any, of Preferred Shares,
holders of Common Shares will be entitled to share ratably in the assets of the
Company remaining after provision for payment of liabilities to creditors. All
Common Shares have equal dividend, distribution, liquidation and other rights.
Preferred Shares of Beneficial Interest
The Preferred Shares authorized by the Company's Declaration of Trust
may be issued from time to time in one or more series. Prior to the issuance of
Preferred Shares of each such series, the Board of Trustees is required by the
Maryland REIT Law and the Company's Declaration of Trust to set for each series
the terms, preferences, conversion or other rights, voting powers, restrictions,
limitations as to distributions, qualifications and terms or conditions of
redemption, as are permitted by the Maryland REIT Law. Such rights, powers,
restrictions and limitations could include the right to receive specified
distributions and payments on liquidation prior to any such payments being made
to the holders of Common Shares. Under certain circumstances, the issuance of
Preferred Shares could have the effect of delaying, deferring or preventing a
change of control of the Company and may adversely affect the voting and other
rights of the holders of the Common Shares.
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Classification or Reclassification of Preferred Shares
The Declaration of Trust authorizes the Trustees to classify or
reclassify, in one or more series, any unissued Preferred Shares by setting or
changing the number of Preferred Shares constituting such series and the
designation, preferences, conversion or other rights, voting powers,
restrictions, limitations as to distributions, qualifications or terms or
conditions of redemption of such Preferred Shares.
Preferred Shares
The prospectus supplement relating to any Preferred Shares offered
thereby will contain the specific terms thereof, including, without limitation:
(1) The title and stated value of such Preferred Shares;
(2) The number of such Preferred Shares offered, the liquidation
preference per share and the offering price of such Preferred Shares;
(3) The distribution rate(s), period(s) and /or payment date(s) or
method(s) of calculation thereof applicable to such Preferred Shares;
(4) The date from which distributions on such Preferred Shares shall
accumulate, if applicable;
(5) The procedures for any auction and remarketing, if any, for such
Preferred Shares;
(6) The provision for a sinking fund, if any, for such Preferred
Shares;
(7) The provision for redemption, if applicable, of such Preferred
Shares;
(8) Any listing of such Preferred Shares on any securities exchange;
(9) The terms and conditions, if applicable, upon which such Preferred
Shares will be convertible into Common Shares of the Company, including the
conversion price (or manner of calculation thereof);
(10) Whether interests in such Preferred Shares will be represented by
Depositary Shares;
(11) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Shares;
(12) A discussion of all material federal income tax considerations, if
any, applicable to such Preferred Shares that are not discussed in this
Prospectus;
(13) The relative ranking and preferences of such Preferred Shares as
to distribution rights and rights upon liquidation, dissolution or winding up of
the affairs of the Company;
(14) Any limitations on issuance of any series of Preferred Shares
ranking senior to or on a parity with such series of Preferred Shares as to
distribution rights and rights upon liquidation, dissolution or winding up of
the affairs of the Company; and
(15) Any limitations on direct or beneficial ownership and restrictions
on transfer, in each case as may be appropriate to preserve the status of the
Company as a REIT.
Restrictions on Transfer
For the Company to qualify as a REIT under the Code, not more than 50%
in value of its outstanding Shares may be owned, directly or indirectly, by five
or fewer individuals (defined in the Code to include certain entities such as
qualified pension plans) during the last half of a taxable year and Shares must
be beneficially owned by 100 or more persons during at least 335 days of a
taxable year of twelve months (or during a proportionate part of a shorter
taxable year).
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Because the Board of Trustees believes it is at present essential for
the Company to continue to qualify as a REIT, the Declaration of Trust, subject
to certain exceptions, contains provisions that restrict the number of Shares
that a person may own and that are designed to safeguard the Company against an
inadvertent loss of REIT status. In order to prevent any shareholder from owning
Shares in an amount that would cause more than 50% in value of the outstanding
Shares to be held by five or fewer individuals, the Board, pursuant to authority
granted in the Declaration of Trust, has passed a resolution that, subject to
certain exceptions described below, provides that no person may own, or be
deemed to own by virtue of the attribution provisions of the Code, more than
9.8% in value of the outstanding Shares, except for Safeguard Scientifics, Inc.
("SSI") which, pursuant to a separate agreement with the Company, may own no
more than 14.75% in value of the outstanding Shares (the "Ownership Limit"). The
Board of Trustees, subject to limitations, retains the authority to effect
additional increases to, or establish exemptions from, the Ownership Limit. The
Board of Trustees, pursuant to authority granted in the Declaration of Trust,
has passed a resolution that provides that, for purposes of determining
applicable ownership limitations: (i) the beneficiaries of SERS (in accord with
their actuarial interests therein), and not SERS or the SERS Voting Trust, shall
be deemed the direct owners of Shares held by the SERS Voting Trust, and (ii)
the owners of the Morgan Stanley Funds (in proportion to their ownership
therein), and not such Morgan Stanley Funds nor a related entity, shall be
deemed the direct owners of Shares held by such Morgan Stanley Funds.
In addition, pursuant to the Declaration of Trust, no purported
transfer of Shares may be given effect if it would result in ownership of all of
the outstanding Shares by fewer than 100 persons (determined without any
reference to the rules of attribution) or result in the Company being "closely
held" within the meaning of Section 856(h) of the Code (the "Ownership
Restrictions"). In the event of a purported transfer or other event that would,
if effective, result in the ownership of Shares in violation of the Ownership
Limit or the Ownership Restrictions, such transfer would be deemed void ab
initio and such Shares would automatically be exchanged for "Excess Shares"
authorized by the Declaration of Trust, according to rules set forth in the
Declaration of Trust, to the extent necessary to ensure that the purported
transfer or other event does not result in the ownership of Shares in violation
of the Ownership Limit or the Ownership Restrictions.
Holders of Excess Shares are not entitled to voting rights (except to
the extent required by law), dividends or distributions. If, after the purported
transfer or other event resulting in an exchange of Shares for Excess Shares and
prior to the discovery by the Company of such exchange, dividends or
distributions are paid with respect to Shares that were exchanged for Excess
Shares, then such dividends or distributions would be repayable to the Company
upon demand. While outstanding, Excess Shares would be held in trust by the
Company for the benefit of the ultimate transferee of an interest in such trust,
as described below. While Excess Shares are held in trust, an interest in that
trust may be transferred by the purported transferee or other purported holder
with respect to such Excess Shares only to a person whose ownership of the
Shares would not violate the Ownership Limit or the Ownership Restrictions, at
which time the Excess Shares would be automatically exchanged for Shares of the
same type and class as the Shares for which the Excess Shares were originally
exchanged. The Declaration of Trust contains provisions that are designed to
ensure that the purported transferee or other purported holder of the Excess
Shares may not receive in return for such a transfer an amount that reflects any
appreciation in the Shares for which such Excess Shares were exchanged during
the period that such Excess Shares were outstanding. Any amount received by a
purported transferee or other purported holder in excess of the amount permitted
to be received would be required to be turned over to the Company.
The Declaration of Trust also provides that Excess Shares shall be
deemed to have been offered for sale to the Company, or its designee, which
shall have the right to accept such offer for a period of 90 days after the
later of: (i) the date of the purported transfer or event which resulted in an
exchange of Shares for such Excess Shares; and (ii) the date the Board of
Trustees determines that a purported transfer or other event resulting in an
exchange of Shares for such Excess Shares has occurred if the Company does not
receive notice of any such transfer. The price at which the Company may purchase
such Excess Shares would be equal to the lesser of: (i) in the case of Excess
Shares resulting from a purported transfer for value, the price per share in the
purported transfer that caused the automatic exchange for such Excess Shares or,
in the case of Excess Shares resulting from some other event, the market price
of such Shares on the date of the automatic exchange for Excess Shares; or (ii)
the market price of such Shares on the date that the Company accepts such Excess
Shares. Any dividend or distribution paid to a proposed transferee on Excess
Shares prior to the discovery by the Company that such Shares have been
transferred in violation of the provisions of the Declaration of Trust shall be
repaid to the Company upon demand. If the foregoing restrictions are determined
to be void or invalid by virtue of any legal decision, statute, rule or
regulation, then the intended transferee or holder of any Excess Shares may be
deemed, at the option of the Company, to have acted as
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an agent on behalf of the Company in acquiring or holding such Excess Shares and
to hold such Excess Shares on behalf of the Company.
The Trustees may waive the Ownership Restrictions if evidence
satisfactory to the Trustees and the Company's tax counsel or tax accountants is
presented showing that such waiver will not jeopardize the Company's status as a
REIT under the Code. As a condition of such waiver, the Trustees may require
that an intended transferee give written notice to the Company, furnish such
opinions of counsel, affidavits, undertakings, agreements and information as may
be required by the Trustees and/or an undertaking from the applicant with
respect to preserving the status of the Company. The Ownership Restrictions will
not apply if the Company determines that it no longer will attempt to qualify,
or continue to qualify, as a REIT. Any transfer of Shares, or any security
convertible into Shares that would: (i) create a direct or indirect ownership of
Shares in excess of the Ownership Limit; or (ii) result in the violation of the
Ownership Restrictions will be void with respect to the intended transferee and
will result in Excess Shares as described above.
Neither the Ownership Restrictions nor the Ownership Limit will be
automatically removed even if the REIT provisions of the Code are changed so as
no longer to contain any ownership concentration limitation or if the ownership
concentration limitation is increased. Except as otherwise described above, any
change in the Ownership Restrictions would require an amendment to the
Declaration of the Trust. Amendments to the Declaration require the affirmative
vote of holders owning not less than a majority of the outstanding Shares
entitled to vote thereon. In addition to preserving the Company's status as a
REIT, the Ownership Restrictions and the Ownership Limit may have the effect of
precluding an acquisition of control of the Company without the approval of the
Board of Trustees.
All persons who own, directly or by virtue of the applicable
attribution provisions of the Code, more than 4.0% of the value of any class of
outstanding Shares, must file an affidavit with the Company containing the
information specified in the Declaration by January 31 of each year. In
addition, each shareholder shall upon demand be required to disclose to the
Company in writing such information with respect to the direct, indirect and
constructive ownership of Shares as the Trustees deem necessary to comply with
the provisions of the Code applicable to REITs, to comply with the requirements
of any taxing authority or governmental agency or to determine any such
compliance.
The Ownership Limit could have the effect of delaying, deferring or
preventing a transaction or a change in control of the Company that might
involve a premium price for the Common Shares or otherwise be in the best
interest of the shareholders of the Company.
All certificates representing Shares that are hereafter issued will
bear a legend referring to the restrictions and limitations described above.
DESCRIPTION OF DEPOSITARY SHARES
General
The Company may issue receipts ("Depositary Receipts") for the
Depository Shares, each of which will represent a fractional interest of a share
of a particular series of Preferred Shares, as specified in the applicable
prospectus supplement. Preferred Shares of each series represented by Depositary
Shares will be deposited under a separate Deposit Agreement (each, a "Deposit
Agreement") among the Company, the depositary named therein (the "Preferred
Share Depositary") and the holders from time to time of the Depositary Receipts.
Subject to the terms of the Deposit Agreement, each owner of a Depositary
Receipt will be entitled, in proportion to the fractional interest of a share of
a particular series of Preferred Shares represented by the Depositary Shares
evidenced by such Depositary Receipt, to all the rights and preferences of the
Preferred Shares represented by such Depositary Shares (including distribution,
voting, conversion, redemption and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the issuance
and delivery of the Preferred Shares by the Company to the Preferred Share
Depositary, the Company will cause the Preferred Share Depositary to issue, on
behalf of the Company, the Depositary Receipts. Copies of the applicable form of
Deposit Agreement and Depositary Receipt may be obtained from the Company upon
request, and the following summary of the form thereof filed as an exhibit
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to the Registration Statement of which this Prospectus is a part is qualified in
its entirety by reference to these documents.
Distributions
The Preferred Share Depositary will distribute all cash distributions
received in respect of the Preferred Shares to the record holders of Depositary
Receipts evidencing the related Depositary Shares in proportion to the number of
such Depositary Receipts owned by such holders, subject to certain obligations
of holders to file proofs, certificates and other information and to pay certain
charges and expenses to the Preferred Share Depositary.
In the event of a distribution other than in cash, the Preferred Share
Depositary will distribute property received by it to the record holders of
Depositary Receipts entitled to such distributions, subject to certain
obligations of holders to file proofs, certificates and other information and to
pay certain charges and expenses to the Preferred Share Depositary, unless the
Preferred Share Depositary determines that it is not feasible to make such
distribution, in which case the Preferred Share Depositary may, with the
approval of the Company, sell such property and distribute the net proceeds from
such sale to such holders.
No distribution will be made in respect of any Depositary Share to the
extent that it represents any Preferred Shares converted into Excess Shares.
Withdrawal of Shares
Upon surrender of the Depositary Receipts at the corporate trust office
of the Preferred Share Depositary (unless the related Depositary Shares have
previously been called for redemption or converted into Excess Shares), the
holders thereof will be entitled to delivery at such office, to or upon such
holder's order, of the number of whole or fractional Preferred Shares and any
money or other property represented by the Depositary Shares evidenced by such
Depositary Receipts. Holders of Depositary Receipts will be entitled to receive
whole or fractional shares of the related Preferred Shares on the basis of the
proportion of the Preferred Shares represented by each Depositary Share as
specified in the applicable prospectus supplement, but holders of such Preferred
Shares will not thereafter be entitled to receive Depositary Shares therefor. If
the Depositary Receipts delivered by the holder evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the number of
Preferred Shares to be withdrawn, the Preferred Share Depositary will deliver to
such holder at the same time a new Depositary Receipt evidencing such excess
number of Depositary Shares.
Redemption of Depositary Shares
Whenever the Company redeems Preferred Shares held by the Preferred
Share Depositary, the Preferred Share Depositary will redeem as of the same
redemption date the number of Depositary Shares representing the Preferred
Shares so redeemed, provided the Company shall have paid in full to the
Preferred Share Depositary the redemption price of the Preferred Shares to be
redeemed plus an amount equal to any accrued and unpaid distributions thereon to
the date fixed for redemption. The redemption price per Depositary Share will be
equal to the redemption price and any other amounts per share payable with
respect to the Preferred Shares. If fewer than all the Depositary Shares are to
be redeemed, the Depositary Shares to be redeemed will be selected pro rata (as
nearly as may be practicable without creating fractional Depositary Shares) or
by any other equitable method determined by the Company that will not result in
the issuance of any Excess Shares.
From and after the date fixed for redemption, all distributions in
respect of the Preferred Shares so called for redemption will cease to accrue,
the Depositary Shares so called for redemption will no longer be deemed to be
outstanding and all rights of the holders of the Depositary Receipts evidencing
the Depositary Shares so called for redemption will cease, except the right to
receive any monies payable upon such redemption and any money or other property
to which the holders of such Depositary Receipts were entitled upon such
redemption upon surrender thereof to the Preferred Share Depositary.
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Voting of the Preferred Shares
Upon receipt of notice of any meeting at which the holders of the
Preferred Shares are entitled to vote, the Preferred Share Depositary will mail
the information contained in such notice of meeting to the record holders of the
Depositary Receipts evidencing the Depositary Shares which represent such
Preferred Shares. Each record holder of Depositary Receipts evidencing
Depositary Shares on the record date (which will be the same date as the record
date for the Preferred Shares) will be entitled to instruct the Preferred Share
Depositary as to the exercise of the voting rights pertaining to the amount of
Preferred Shares represented by such holder's Depositary Shares. The Preferred
Share Depositary will vote the amount of Preferred Shares represented by such
Depositary Shares in accordance with such instructions, and the Company will
agree to take all reasonable action which may be deemed necessary by the
Preferred Share Depositary in order to enable the Preferred Share Depositary to
do so. The Preferred Share Depositary will abstain from voting the amount of
Preferred Shares represented by such Depositary Shares to the extent it does not
receive specific instructions from the holders of Depositary Receipts evidencing
such Depositary Shares. The Preferred Share Depositary shall not be responsible
for any failure to carry out any instruction to vote, or for the manner or
effect of any such vote made, as long as any such action or non-action is in
good faith and does not result from negligence or willful misconduct of the
Preferred Share Depositary.
Liquidation Preference
In the event of the liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, the holders of each Depositary
Receipt will be entitled to the fraction of the liquidation preference accorded
each Preferred Share represented by the Depositary Share evidenced by such
Depositary Receipt, as set forth in the applicable prospectus supplement.
Conversion of Preferred Shares
The Depositary Shares, as such, are not convertible into Common Shares
or any other securities or property of the Company, except in connection with
certain conversions in connection with the preservation of the Company's status
as a REIT. Nevertheless, if so specified in the applicable prospectus supplement
relating to an offering of Depositary Shares, the Depositary Receipts may be
surrendered by holders thereof to the Preferred Share Depositary with written
instructions to the Preferred Share Depositary to instruct the Company to cause
conversion of the Preferred Shares represented by the Depositary Shares
evidenced by such Depositary Receipts into whole Common Shares, other Preferred
Shares (including Excess Shares) of the Company or other shares of beneficial
interest, and the Company has agreed that upon receipt of such instructions and
any amounts payable in respect thereof, it will cause the conversion thereof
utilizing the same procedures as those provided for delivery of Preferred Shares
to effect such conversion. If the Depositary Shares evidenced by a Depositary
Receipt are to be converted in part only, a new Depositary Receipt or Receipts
will be issued for any Depositary Shares not to be converted. No fractional
Common Shares will be issued upon conversion, and if such conversion will result
in a fractional share being issued, an amount will be paid in cash by the
Company equal to the value of the fractional interest based upon the closing
price of the Common Shares on the last business day prior to the conversion.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares which
represent the Preferred Shares and any provision of the Deposit Agreement may at
any time be amended by agreement between the Company and the Preferred Share
Depositary. However, any amendment that materially and adversely alters the
rights of the holders of Depositary Receipts or that would be materially and
adversely inconsistent with the rights granted to the holders of the related
Preferred Shares will not be effective unless such amendment has been approved
by the existing holders of at least a majority of the Depositary Shares
evidenced by the Depositary Receipts then outstanding. No amendment shall impair
the right, subject to certain exceptions in the Depositary Agreement, of any
holder of Depositary Receipts to surrender any Depositary Receipt with
instructions to deliver to the holder the related Preferred Shares and all money
and other property, if any, represented thereby, except in order to comply with
law. Every holder of an outstanding Depositary Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold such
Depositary Receipt, to consent and agree to such amendment and to be bound by
the Deposit Agreement as amended thereby.
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The Deposit Agreement may be terminated by the Company upon not less
than 30 days' prior written notice to the Preferred Share Depositary if: (i)
such termination is necessary to assist in maintaining the Company's status as a
REIT or (ii) a majority of each series of Preferred Shares affected by such
termination consents to such termination, whereupon the Preferred Share
Depositary shall deliver or make available to each holder of Depositary
Receipts, upon surrender of the Depositary Receipts held by such holder, such
number of whole or fractional Preferred Shares as are represented by the
Depositary Shares evidenced by such Depositary Receipts together with any other
property held by the Preferred Share Depositary with respect to such Depositary
Receipts. The Company has agreed that if the Deposit Agreement is terminated to
assist in maintaining the Company's status as a REIT, then, if the Depositary
Shares are listed on a national securities exchange, the Company will use its
best efforts to list the Preferred Shares issued upon surrender of the related
Depositary Shares on a national securities exchange. In addition, the Deposit
Agreement will automatically terminate if: (i) all outstanding Depositary Shares
shall have been redeemed, (ii) there shall have been a final distribution in
respect of the related Preferred Shares in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Depositary Receipts evidencing the Depositary
Shares representing such Preferred Shares or (iii) each share of the related
Preferred Shares shall have been converted into shares of beneficial interest of
the Company not so represented by Depositary Shares.
Charges of Preferred Share Depositary
The Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of the Deposit Agreement. In addition,
the Company will pay the fees and expenses of the Preferred Share Depositary in
connection with the performance of its duties under the Deposit Agreement.
However, holders of Depositary Receipts will pay certain other transfer and
other taxes and governmental charges as well as the fees and expenses of the
Preferred Share Depositary for any duties requested by such holders to be
performed which are outside of those expressly provided for in the Deposit
Agreement.
Resignation and Removal of Depositary
The Preferred Share Depositary may resign at any time by delivering to
the Company notice of its election to do so, and the Company may at any time
remove the Preferred Share Depositary, any such resignation or removal to take
effect upon the appointment of a successor Preferred Share Depositary. A
successor Preferred Share Depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000.
Miscellaneous
The Preferred Share Depositary will forward to holders of Depositary
Receipts any reports and communications from the Company which are received by
the Preferred Share Depositary with respect to the related Preferred Shares.
Neither the Preferred Share Depositary nor the Company will be liable
if it is prevented from or delayed in, by law or any circumstances beyond its
control, performing its obligations under the Deposit Agreement. The obligations
of the Company and the Preferred Share Depositary under the Deposit Agreement
will be limited to performing their duties thereunder in good faith and without
negligence (in the case of any action or inaction in the voting of Preferred
Shares represented by the Depositary Shares), gross negligence or willful
misconduct, and the Company and the Preferred Share Depositary will not be
obligated to prosecute or defend any legal proceeding in respect of any
Depositary Receipts, Depositary Shares or Preferred Shares represented thereby
unless satisfactory indemnity is furnished. The Company and the Preferred Share
Depositary may rely on written advice of counsel or accountants, or information
provided by persons presenting Preferred Shares represented thereby for deposit,
holders of Depositary Receipts or other persons believed in good faith to be
competent to give such information, and on documents believed in good faith to
be genuine and signed by a proper party.
In the event the Preferred Share Depositary shall receive conflicting
claims, requests or instructions from any holders of Depositary Receipts, on the
one hand, and the Company, on the other hand, the Preferred Share Depositary
shall be entitled to act on such claims, requests or instructions received from
the Company.
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DESCRIPTION OF WARRANTS
The Company may issue Warrants to purchase of Preferred Shares,
Depositary Shares or Common Shares. Warrants may be issued independently or
together with any Securities and may be attached to or separate from such
securities. Each series of Warrants will be issued under a separate warrant
agreement (each, a "Warrant Agreement") to be entered into between the Company
and a specified warrant agent ("Warrant Agent"). The Warrant Agent will act
solely as an agent of the Company in connection with the Warrants of such series
and will not assume any obligation or relationship of agency or trust for or
with any holders or beneficial owners of Warrants.
The applicable prospectus supplement will describe the following terms,
where applicable, of the Warrants in respect of which this Prospectus is being
delivered: (i) the title of such Warrants; (ii) the aggregate number of such
Warrants; (iii) the price or prices at which such Warrants will be issued; (iv)
the currencies in which the price or prices of such Warrants may be payable; (v)
the designation, amount and terms of the Securities purchasable upon exercise of
such Warrants; (vi) the designation and terms of the other Securities with which
such Warrants are issued and the number of such Warrants issued with each such
security; (vii) if applicable, the date on and after which such Warrants and the
Securities purchasable upon exercise of such Warrants will be separately
transferable; (viii) the price or prices at which and currency or currencies in
which the Securities purchasable upon exercise of such Warrants may be
purchased; (ix) the date on which the right to exercise such Warrants shall
commence and the date on which such right shall expire; (x) the minimum or
maximum amount of such Warrants which may be exercised at any one time; (xi)
information with respect to book-entry procedures, if any; (xii) a discussion of
certain Federal income tax considerations; and (xiii) any other material terms
of such Warrants, including terms, procedures and limitations relating to the
exchange and exercise of such Warrants.
CERTAIN PROVISIONS OF MARYLAND LAW AND OF
THE COMPANY'S DECLARATION OF TRUST AND BYLAWS
The following summary of certain provisions of Maryland law and of the
Declaration of Trust and Bylaws does not purport to be complete and is subject
to and qualified in its entirety by reference to Maryland law and to the
Declaration of Trust and Bylaws of the Company, as amended, which are
incorporated by reference into this Registration Statement.
Duration
Under the Company's Declaration of Trust, the Company has a perpetual
term and will continue perpetually subject to the authority of the Board of
Trustees to terminate the Company's existence and liquidate its assets and
subject to termination pursuant to the Maryland REIT Law.
Board of Trustees
The Company's Declaration of Trust provides that the number of Trustees
of the Company shall not be less than three nor more than 15. Any vacancy
(including a vacancy created by an increase in the number of Trustees) will be
filled, at any regular meeting or at any special meeting called for that
purpose, by a majority of the Trustees (although less than a quorum). The
Trustees will each serve for a term of one year (except that an individual who
has been elected to fill a vacancy will hold office only until the next annual
meeting of shareholders and until his successor has been duly elected and
qualified).
The Declaration of Trust provides that a Trustee may be removed from
office only at a meeting of the shareholders called for that purpose, by the
affirmative vote of the holders of not less than a majority of the Shares
entitled to vote in the election of Trustees; provided, however, that in the
case of any Trustees elected solely by holders of a series of Preferred Shares,
such Trustees may be removed by the affirmative vote of a majority of the
Preferred Shares of that series then outstanding and entitled to vote in the
election of Trustees, voting together as a single class.
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Meetings of Shareholders
The Declaration of Trust requires the Company to hold an annual meeting
of shareholders for the election of Trustees and the transaction of any other
proper business. Special meetings of shareholders may be called upon the written
request of shareholders holding at least 10% of the Common Shares. Special
meetings of shareholders may also be called by the holders of Preferred Shares
to the extent, if any, determined by the Board of Trustees in connection with
the establishment of a class or series of Preferred Shares. Any action required
or permitted to be taken by shareholders must be taken at a duly called annual
or special meeting of shareholders and may not be effected by any consent in
writing of shareholders.
Business Combinations
Under the MGCL, as applicable to Maryland real estate investment
trusts, certain "business combinations" (including certain mergers,
consolidations, share exchanges, or, in certain circumstances, asset transfers
or issuances or reclassifications of equity securities) between a Maryland real
estate investment trust and an Interested Shareholder or an affiliate of the
Interested Shareholder are prohibited for five (5) years after the most recent
date on which the Interested Shareholder becomes an Interested Shareholder.
Thereafter, any such business combination must be: (a) recommended by the
trustees of such trust and (b) approved by the affirmative vote of at least: (i)
80% of the votes entitled to be cast by holders of outstanding voting shares of
beneficial interest of the trust; and (ii) two-thirds of the votes entitled to
be cast by holders of outstanding voting shares of beneficial interest other
than shares held by the Interested Shareholder with whom (or with whose
affiliate) the business combination is to be effected, unless, among other
conditions, the trust's common shareholders receive a minimum price (as defined
in the MGCL) for their shares and the consideration is received in cash or in
the same form as previously paid by the Interested Shareholder for its shares.
These provisions of the MGCL do not apply, however, to business combinations
that are approved or exempted by the board of trustees of the trust prior to the
time that the Interested Shareholder becomes an Interested Shareholder. An
amendment to a Maryland REIT's declaration of trust electing not to be subject
to the foregoing requirements must be approved by the affirmative vote of at
least 80% of the votes entitled to be cast by holders of outstanding voting
shares of beneficial interest of the trust, voting together as a single voting
group, and two-thirds of the votes entitled to be cast by holders of outstanding
voting shares of beneficial interest other than shares of beneficial interest
held by Interested Shareholders. Any such amendment shall not be effective until
18 months after the vote of shareholders and does not apply to any business
combination of the trust with an Interested Shareholder on the date of the
shareholder vote. The Board of Trustees has exempted any business combinations
involving SSI, TNC, Gerard H. Sweeney and their respective affiliates from the
business combination provisions of the MGCL and, consequently, the five-year
prohibition and the super-majority vote requirements will not apply to business
combinations between any of them and the Company. As a result, SSI, TNC, Gerard
H. Sweeney and their respective affiliates may be able to enter into business
combinations that may not be in the best interest of the shareholders without
compliance by the Company with the super-majority vote requirements and the
other provisions of the statute. In addition, the Company has exempted any
business combination involving SERS or the SERS Voting Trust and any of their
respective existing or future affiliates and Morgan Stanley Asset Management
Inc. and the Morgan Stanley Funds and any of their respective existing or future
affiliates from the business combination provisions of the MGCL.
The business combination statute could have the effect of delaying,
deferring or preventing offers to acquire the Company and of increasing the
difficulty of consummating any such offer.
Control Share Acquisitions
The MGCL, as applicable to Maryland real estate investment trusts,
provides that "control shares" of a Maryland real estate investment trust
acquired in a "control share acquisition" have no voting rights except to the
extent approved by a vote of two-thirds of the votes entitled to be cast on the
matter by shareholders, excluding shares owned by the acquiror, by officers or
by trustees who are employees of the trust in question. "Control shares" are
voting shares of beneficial interest which, if aggregated with all other shares
previously acquired by such acquiror or in respect of which the acquiror is able
to exercise or direct the exercise of voting power (except solely by virtue of a
revocable proxy), would entitle the acquiror to exercise the voting power in the
election of trustees within one of the following ranges of voting power: (a)
one-fifth or more but less than one-third, (b) one-third or more but less than a
majority, or (c) a majority or more of all voting power. Control shares do not
include shares the acquiring person is then entitled to vote as a result of
having previously obtained shareholder approval. A "control share acquisition"
means the acquisition of control shares, subject to certain exceptions.
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A person who has made or proposes to make a control share acquisition,
upon satisfaction of certain conditions (including an undertaking to pay
expenses), may compel the trust's board of trustees to call a special meeting of
shareholders to be held within 50 days of demand to consider the voting rights
of the shares. If no request for a meeting is made, the trust may itself present
the question at any shareholders meeting.
If voting rights are not approved at the meeting or if the acquiring
person does not deliver an acquiring person statement as required by the
statute, then, subject to certain conditions and limitations, the trust may
redeem any or all of the control shares, except those for which voting rights
have previously been approved, for fair value determined, without regard to the
absence of voting rights for the control shares, as of the date of the last
control share acquisition by the acquiror or of any meeting of shareholders at
which the voting rights of such shares are considered and not approved. If
voting rights for control shares are approved at a shareholders meeting and the
acquiror becomes entitled to vote a majority of the shares entitled to vote, all
other shareholders may exercise appraisal rights. The fair value of the shares
as determined for purposes of such appraisal rights may not be less than the
highest price per share paid by the acquiror in the control share acquisition,
and certain limitations and restrictions otherwise applicable to the exercise of
dissenters' rights do not apply in the context of a control share acquisition.
The control share acquisition statute does not apply to shares acquired
in a merger, consolidation or share exchange if the trust is a party to the
transaction, or to acquisitions approved or exempted by the declaration of trust
or bylaws of the trust. Pursuant to the statute, the Company has exempted any
and all acquisitions of Shares by SSI, TNC and any current or future affiliate
or associate of theirs from the control share provisions of the MGCL. As a
result, SSI or TNC and their affiliates will be able to possess voting power not
generally available to other persons and the effect may be to further enhance
their ability to control the Company. In addition, pursuant to the statute, the
Company has exempted any and all acquisitions of Shares by SERS and the SERS
Voting Trust and any of their respective current or future affiliates or
associates and Morgan Stanley Asset Management Inc. and the Morgan Stanley Funds
and any of their respective current or future affiliates or associates from the
control share provisions of the MGCL.
The control share acquisition statute could have the effect of
delaying, deferring or preventing offers to acquire the Company and of
increasing the difficulty of consummating any such offer.
Amendment to the Declaration of Trust
The Company's Declaration of Trust may be amended only by the
affirmative vote of the holders of not less than a majority of the Shares then
outstanding and entitled to vote thereon, except for the provisions of the
Declaration of Trust relating to (i) increases or decreases in the aggregate
number of Shares of any class (which may be made by the Board of Trustees
without shareholder approval) and (ii) the MGCL provisions on business
combinations, amendment of which requires the affirmative vote of the holders of
not less than 80% of the Shares then outstanding and entitled to vote. In
addition, in the event that the Board of Trustees shall have determined, with
the advice of counsel, that any one or more of the provisions of the Company's
Declaration of Trust (the "Conflicting Provisions") are in conflict with the
Maryland REIT Law, the Code or other applicable Federal or state law(s), the
Conflicting Provisions shall be deemed never to have constituted a part of the
Declaration of Trust, even without any amendment thereof.
Termination of the Company and REIT Status
Subject to the rights of any outstanding Preferred Shares and to the
provisions of the Maryland REIT Law, the Company's Declaration of Trust permits
the Board of Trustees to terminate the Company and to discontinue the election
of the Company to be taxed as a REIT.
Transactions Between the Company and its Trustees or Officers
The Company's Declaration of Trust provides that any contract or
transaction between the Company and one or more Trustees, officers, employees or
agents of the Company must be approved by a majority of the Trustees who have no
interest in the contract or transaction.
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Limitation of Liability and Indemnification
The Maryland REIT Law permits a Maryland real estate investment trust
to include in its Declaration of Trust a provision limiting the liability of its
trustees and officers to the trust and its shareholders for money damages except
for liability resulting from (a) actual receipt of an improper benefit or profit
in money, property or services or (b) active and deliberate dishonesty
established by a final judgment as being material to the cause of action. The
Declaration of Trust of the Company contains such a provision which eliminates
such liability to the maximum extent permitted by the Maryland REIT Law.
The Company's Bylaws require it to indemnify, without requiring a
preliminary determination of the ultimate entitlement to indemnification, (a)
any present or former Trustee, officer or shareholder who has been successful,
on the merits or otherwise, in the defense of a proceeding to which he was made
a party by reason of such status, against reasonable expenses incurred by him in
connection with the proceeding; (b) any present or former Trustee or officer
against any claim or liability to which he may become subject by reason of such
status unless it is established that (i) his act or omission was committed in
bad faith or was the result of active and deliberate dishonesty, (ii) he
actually received an improper personal benefit in money, property or services or
(iii) in the case of a criminal proceeding, he had reasonable cause to believe
that his act or omission was unlawful; and (c) each shareholder or former
shareholder against any claim or liability to which he may be subject by reason
of such status as a shareholder or former shareholder. However, under the MGCL,
a Maryland corporation may not indemnify for an adverse judgment in a suit by or
in the right of the corporation or for a judgment of liability on the basis that
personal benefit was improperly received, unless in either case a court orders
indemnification and then only for expenses. In addition, the Company's Bylaws
require it to pay or reimburse, in advance of final disposition of a proceeding,
reasonable expenses incurred by a present or former Trustee, officer or
shareholder made a party to a proceeding by reason of his status as a Trustee,
officer or shareholder provided that, in the case of a Trustee or officer, the
Company shall have received (i) a written affirmation by the Trustee or officer
of his good faith belief that he has met the applicable standard of conduct
necessary for indemnification by the Company as authorized by the Bylaws and
(ii) a written undertaking by or on his behalf to repay the amount paid or
reimbursed by the Company if it shall ultimately be determined that the
applicable standard of conduct was not met. The Company's Bylaws also (i) permit
the Company, with the approval of its Trustees, to provide indemnification and
payment or reimbursement of expenses to a present or former Trustee, officer or
shareholder who served a predecessor of the Company in such capacity, and to any
employee or agent of the Company or a predecessor of the Company, (ii) provide
that any indemnification or payment or reimbursement of the expenses permitted
by the Bylaws shall be furnished in accordance with the procedures provided for
indemnification and payment or reimbursement of expenses under Section 2-418 of
the MGCL for directors of Maryland corporations and (iii) permit the Company to
provide such other and further indemnification or payment or reimbursement of
expenses as may be permitted by the MGCL for directors of Maryland corporations.
The limited partnership agreement of the Operating Partnership also
provides for indemnification by the Operating Partnership of the Company, as
general partner, and its Trustees and officers for any costs, expenses or
liabilities incurred by them by reason of any act performed by them for or on
behalf of the Operating Partnership or the Company; provided that such person's
actions were taken in good faith and in the belief that such conduct was in the
best interests of the Operating Partnership and that such person was not guilty
of fraud, willful misconduct or gross negligence.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to Trustees and officers of the Company pursuant to the
foregoing provisions or otherwise, the Company has been advised that, although
the validity and scope of the governing statute has not been tested in court, in
the opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In addition, indemnification may be limited by state securities
laws.
Maryland Asset Requirements
To maintain its qualification as a Maryland real estate investment
trust, the Maryland REIT Law requires that the Company hold, either directly or
indirectly, at least 75% of the value of its assets in real estate assets,
mortgages or mortgage related securities, government securities, cash and cash
equivalent items, including high-grade short-term securities and receivables.
The Maryland REIT Law also prohibits using or applying land for farming,
agricultural, horticultural or similar purposes.
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POLICIES WITH RESPECT TO CERTAIN ACTIVITIES
The following is a discussion of certain investment, financing and
other policies of the Company. These policies have been determined by the
Company's Board of Trustees and may be amended or revised from time to time by
the Board of Trustees without a vote of shareholders. No assurance can be given
that the Company's investment objectives will be attained or that the value of
the Company will not decrease.
Investment Policies
Investments in Real Estate or Interests in Real Estate. The Company's
business objective is to increase cash available for distribution and to
maximize shareholder value by: (i) maximizing cash flow through leasing
strategies designed to capture potential rental growth as rental rates increase
and as below-market leases are renewed; (ii) ensuring a high tenant retention
rate through an aggressive tenant services program responsive to the varying
needs of the Company's diverse base of tenants; (iii) broadening its geographic
and economic diversification while maximizing economies of scale; (iv) acquiring
high-quality office and industrial properties and portfolios of such properties
at attractive yields in selected submarkets within the Mid-Atlantic region
(including Delaware, Maryland, New Jersey, New York, Ohio, Pennsylvania,
Virginia and the District of Columbia), which management expects will experience
economic growth; (v) capitalizing on management's redevelopment expertise to
selectively acquire, redevelop and reposition underperforming properties in
desirable locations; (vi) acquiring land in anticipation of developing office or
industrial properties on a build-to-suit basis, under circumstances where
significant pre-leasing can be arranged or as otherwise warranted by market
conditions; (vii) enhancing the Company's investment strategy through the
pursuit of joint venture opportunities with high quality partners having
attractive real estate holdings or significant financial resources; and (viii)
optimizing the use of debt and equity financing to create a flexible and
conservative capital structure that will enable the Company to continue its
aggressive growth strategy.
As a result of its business objective of increasing cash available for
distribution and maximizing shareholder value, the Company has recently
experienced rapid growth. Between January 1, 1997 and June 1, 1998 the Company
has acquired 117 office properties containing approximately 8.6 million net
rentable square feet and 25 industrial facilities containing approximately 1.7
million net rentable square feet and, together with the Development Entities,
has acquired ownership of, or rights to acquire, approximately 349.3 acres of
undeveloped land. The aggregate purchase price for the 142 Properties acquired
by the Company between January 1, 1997 and June 1, 1998 was approximately $986.4
million. The Company believes that, through the expertise and extensive
relationships of its management and its flexible capital structure, it will
continue to identify and capitalize on substantial opportunities for additional
real estate investments from a variety of sources, including institutional and
private holders of real estate seeking liquidity or reduction in their holdings
or tax-deferred dispositions.
The Company expects to continue to concentrate its real estate
activities in submarkets within the Mid-Atlantic region where it believes that:
(i) barriers to entry (such as zoning restrictions, infrastructure limitations
and limited developable land) are likely to create supply constraints on office
and industrial space; (ii) current market rents do not justify new construction;
(iii) it can maximize market penetration by accumulating a critical mass of
properties and thereby enhance operating efficiencies; and (iv) there is
potential for economic growth.
The Company may develop, purchase or lease income-producing properties
for long-term investment, expand and improve the Properties presently owned or
other properties purchased, or sell such properties, in whole or in part, when
circumstances warrant. Although there is no limitation on the types of
development activities that the Company may undertake, the Company expects that
its development activities will generally be on a build-to-suit basis for
particular tenants, or where a significant portion of the building is pre-leased
before construction begins. The Company may also participate with other entities
in property ownership and development through joint ventures, such as the
Development Entities, or other types of co-ownership. Equity investments may be
subject to existing or future mortgage financing and other indebtedness that
will have priority over the equity interests in the Company.
Securities of or Interests in Entities Primarily Engaged in Real Estate
Activities and Other Issuers. Subject to the percentage of ownership limitations
and gross income tests necessary for REIT qualification, the Company also may
invest in securities of other REITS, other entities engaged in real estate
activities or securities of other issuers. The Company may enter into additional
joint ventures or partnerships for the purpose of obtaining an equity interest
in a particular property in accordance with the Company's investment policies.
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Investments in Real Estate Mortgages. While the Company's current
portfolio consists of, and the Company's business objectives emphasize, equity
investments in commercial real estate, the Company may, in the discretion of the
Board of Trustees, invest in other types of equity real estate investments,
mortgages and other real estate interests. The Company may also invest in
participating or convertible mortgages if the Company concludes that it may
benefit from the cash flow or any appreciation in the value of the property.
Investment through the Operating Partnership. The Company has made no
determination to conduct all of its activities through the Operating
Partnership. As of the date of this Prospectus, the Company owns all of the
Properties or the economic interest therein indirectly through the Operating
Partnership. Although the Partnership Agreement of the Operating Partnership
contains no provision restricting the Company's ability to acquire additional
properties outside the Operating Partnership, the Partnership Agreement provides
that if the Company acquires additional properties outside the Operating
Partnership, the percentage of administrative fees of the Company allocated to
the Operating Partnership will be reduced to an amount that is fair and
equitable under the circumstances.
Dispositions
The Company may sell properties in its portfolio if, based upon
management's periodic review of the Company's portfolio, the Board of Trustees
determines that such action would be in the best interests of the Company.
Financing Policies
The Company has adopted a policy to operate with a ratio of
debt-to-total market capitalization (i.e., the total consolidated debt of the
Company as a percentage of the market value of issued and outstanding Shares and
Units plus total consolidated debt) of not more than 50%. The Company's
Declaration of Trust and Bylaws do not, however, limit the amount or percentage
of indebtedness that the Company may incur. In addition, the Company may, from
time to time, modify its debt policy in light of current economic conditions,
relative costs of debt and equity capital, market values of its properties,
general conditions in the market for debt and equity securities, fluctuations in
the market price of its Common Shares, growth opportunities and other factors.
Accordingly, the Company may increase or decrease its debt-to-market
capitalization ratio beyond the limit described above. To the extent that the
Board of Trustees decides to obtain additional capital, the Company may raise
such capital through additional equity offerings (including offerings of senior
or convertible securities), debt financings or retention of cash flow (subject
to provisions in the Code concerning taxability of undistributed REIT income),
or a combination of these methods. Borrowing may be unsecured or secured by any
or all of the assets of the Company, the Operating Partnership or any existing
or new property-owning partnership and may have full or limited recourse to all
or any portion of the assets of the Company, the Operating Partnership or any
existing or new property-owning partnership. Indebtedness incurred by the
Company may be in the form of bank borrowing, purchase money obligations to
sellers of the properties, publicly or privately placed debt instruments or
financing from institutional investors or other lenders. The proceeds from any
borrowing by the Company may be used for working capital, to refinance existing
indebtedness, to finance acquisition, expansion or development of new properties
and for the payment of distributions. The Company has not established any limit
on the number or amount of mortgages that may be placed on any single property
or on its portfolio as a whole.
The Company has established its debt policy relative to the total
market capitalization of the Company rather than relative to the book value of
its assets. The Company has used total market capitalization because it believes
that the book value of its assets (which to a large extent is the depreciated
value of real property, the Company's primary tangible asset) does not
accurately reflect its ability to borrow and to meet debt service requirements.
The market capitalization of the Company, however, is more variable than book
value, and does not necessarily reflect the fair market value of the underlying
assets of the Company at all times. The Company will also consider factors other
than market capitalization in making decisions regarding the incurrence of
indebtedness, such as the purchase price of properties to be acquired with debt
financing, the estimated market value of its properties upon refinancing and the
ability of particular properties and the Company as a whole to generate cash
flow to cover expected debt service.
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Working Capital Reserves
The Company will maintain working capital reserves (and when not
sufficient, access to borrowings) in amounts that the Board of Trustees
determines to be adequate to meet normal contingencies in connection with the
Company's business and investments.
Conflict of Interests Policies
The Company has not adopted any formal or informal policies intended to
eliminate the influence of conflicts of interest. Under the Company's
Declaration of Trust, a transaction effected by the Company or any entity
controlled by the Company in which a Trustee or officer has a financial interest
may only be consummated if the transaction is first approved by a majority of
the Trustees who have no interest in the transaction.
Policies with Respect to Other Activities
The Company has authority to offer Common Shares, Preferred Shares,
senior securities or options to purchase shares in exchange for property and, to
the extent permitted by applicable law, to repurchase or otherwise acquire its
Common Shares or other securities in the open market or otherwise and may engage
in such activities in the future. The Board of Trustees periodically evaluates
the possibility of causing the Company to repurchase Common Shares. The Company
expects (but is not obligated) to issue Common Shares to holders of Units in the
Operating Partnership upon exercise of their redemption rights. The Company may
issue Preferred Shares from time to time, in one or more series, as authorized
by the Board of Trustees without the need for shareholder approval. The Company
has not engaged in trading, underwriting or agency distribution or sale of
securities of issuers, nor has the Company invested in the securities of issuers
(other than the Operating Partnership and its subsidiaries and the Development
Entities) for the purposes of exercising control, and does not intend to do so.
The Company intends to operate in a manner that will not subject it to
regulation as an investment company under the Investment Company Act. At all
times, the Company intends to make investments in such a manner as to qualify as
a REIT, unless because of circumstances or changes in the Code (or the Treasury
Regulations), the Board of Trustees determines that it is no longer in the best
interest of the Company to qualify as a REIT. The Company may make loans to
third parties, including, without limitation, to joint ventures in which it
participates. The Company's policies with respect to such activities may be
reviewed and modified or amended from time to time by the Company's Board of
Trustees without a vote of the shareholders.
FEDERAL INCOME TAX CONSIDERATIONS
The following discussion of material Federal income tax considerations
is for general information only and is not tax advice. The following discussion
summarizes all material federal income tax considerations to a holder of Common
Shares and Debt Securities. The applicable prospectus supplement will contain
information about additional federal income tax considerations, if any, relating
to Securities other than Common Shares or Debt Securities. In the opinion of
Arthur Andersen LLP, tax advisor to the Company (the "Tax Advisor") the
discussion below, insofar as it relates to Federal income tax matters, is
correct in all material respects, and fairly summarizes the federal income tax
considerations that are material to a shareholder and/or a holder of Debt
Securities. This discussion does not purport to deal with all aspects of
taxation that may be relevant to particular shareholders and/or a holder of
Debt Securities in light of their personal investment or tax circumstances, or
to certain types of shareholders and/or a holder of Debt Securities (including
insurance companies, tax-exempt organizations, financial institutions or broker
dealers, foreign corporations and persons who are not citizens or residents of
the United States, except to the extent discussed under "Taxation of Foreign
Shareholders" and "Taxation of Holders of Debt Securities - U.S. Alien Holders"
below) subject to special treatment under the Federal income tax laws. The
information in this section is based on the Code, current, temporary and
proposed Treasury Regulations thereunder, the legislative history of the Code,
current administrative interpretations and practices of the IRS (including its
practices and policies as endorsed in private letter rulings, which are not
binding on the IRS except with respect to a taxpayer that receives such a
ruling), and court decisions, all as of the date hereof. The Taxpayer Relief Act
of 1997 (the "1997 Act") was enacted on August 5, 1997. The 1997 Act contains
many provisions which generally make it easier to operate and to continue to
qualify as a REIT for taxable years beginning after the date of enactment
(which, for the Company, would be applicable commencing with its taxable year
beginning January 1, 1998).
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EACH PROSPECTIVE PURCHASER IS ADVISED TO CONSULT HIS OWN TAX ADVISOR
REGARDING THE SPECIFIC TAX CONSEQUENCES TO HIM OF THE PURCHASE, OWNERSHIP AND
SALE OF SECURITIES AND OF THE COMPANY'S ELECTION TO BE TAXED AS A REAL ESTATE
INVESTMENT TRUST, INCLUDING THE FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX
CONSEQUENCES OF SUCH PURCHASE, OWNERSHIP, SALE AND ELECTION AND OF POTENTIAL
CHANGES IN APPLICABLE TAX LAWS.
General
The Company first elected to be taxed as a REIT for its taxable year
ended December 31, 1986, and has operated and expects to continue to operate in
such a manner so as to remain qualified as a REIT for Federal income tax
purposes. In the opinion of the Tax Advisor, and based on certain factual
representations made by the Company relating to the organization and operation
of the Company and the Operating Partnership, the Company will continue to
qualify as a REIT under the Code. However, the opinion of the Tax Advisor is not
binding upon the IRS and no absolute assurance can be given that the Company
will continue to operate in a manner so as to remain qualified as a REIT.
The following is a general summary of the Code sections that govern the
Federal income tax treatment of a REIT and its shareholders. These sections of
the Code are highly technical and complex. This summary is qualified in its
entirety by the applicable Code provisions, rules and regulations promulgated
thereunder ("Treasury Regulations"), and administrative and judicial
interpretations thereof as currently in effect. There is no assurance that there
will not be future changes in the Code or administrative or judicial
interpretation thereof which could adversely affect the Company's ability to
continue to qualify as a REIT or adversely affect the taxation of holders of
Common Shares or which could further limit the amount of income the Company may
derive from the management, construction, development, leasing or sale of
properties owned by the Operating Partnership or by third parties or in
partnerships with third parties.
Taxation of the Company as a REIT
An entity that qualifies for taxation as a REIT and distributes to its
shareholders at least 95% of its REIT taxable income is generally not subject to
Federal corporate income taxes on net income that it currently distributes to
shareholders. This treatment substantially eliminates the "double taxation" (at
the corporate and shareholder levels) that generally results from investment in
a corporation. However, the Company will be subject to Federal income tax as
follows:
The Company will be taxed at regular corporate rates on any
undistributed REIT taxable income, including undistributed net capital gains.
(i) Under certain circumstances, the Company may be subject to
the "alternative minimum tax" on its items of tax preference, if any.
(ii) If the Company has net income from prohibited
transactions (which are, in general, certain sales or other dispositions of
property other than foreclosure property held primarily for sale to customers in
the ordinary course of business) such income will be subject to a 100% tax. See
"- Sale of Partnership Property."
(iii) If the Company should fail to satisfy the 75% gross
income test or the 95% gross income test (as discussed below), and has
nonetheless maintained its qualification as a REIT because certain other
requirements have been met, it will be subject to a 100% tax on the net income
attributable to the greater of the amount by which the Company fails the 75% or
95% test, multiplied by a fraction intended to reflect the Company's
profitability.
(iv) If the Company should fail to distribute during each
calendar year at least the sum of (1) 85% of its REIT ordinary income for such
year, (2) 95% of its REIT capital gain net income for such year, and (3) any
undistributed taxable income from prior years, it would be subject to a 4%
excise tax on the excess of such required distribution over the amounts actually
distributed.
(v) If the Company has (1) net income from the sale or other
disposition of "foreclosure property" (which is, in general, property acquired
by the Company by foreclosure or otherwise or default on a loan secured by the
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property) which is held primarily for sale to customers in the ordinary course
of business or (2) other nonqualifying income from foreclosure property, it will
be subject to tax on such income at the highest corporate rate.
(vi) If the Company acquires any asset from a C corporation
(i.e., generally a corporation subject to tax at the corporate level) in a
transaction in which the basis of the asset in the Company's hands is determined
by reference to the basis of the asset (or any other property) in the hands of
the C corporation, and the Company recognizes gain on the disposition of such
asset during the 10-year period (the "Restriction Period") beginning on the date
on which such asset was acquired by the Company then, pursuant to guidelines
issued by the IRS, the excess of the fair market value of such property at the
beginning of the applicable Restriction Period over the Company's adjusted basis
in such asset as of the beginning of such Restriction Period will be subject to
a tax at the highest regular corporate rate. The results described above with
respect to the recognition of built-in gain assume that the Company will make an
election pursuant to IRS Notice 88-19 or applicable future administrative rules
or Treasury Regulations to avail itself of the benefits of the Restriction
Period.
Qualification of the Company as a REIT
The Code defines a REIT as a corporation, trust or association:
(1) which is managed by one or more trustees or directors;
(2) the beneficial ownership of which is evidenced by
transferable shares or by transferable certificates of beneficial interest;
(3) which would be taxable as a domestic corporation but for
Sections 856 through 859 of the Code;
(4) which is neither a financial institution nor an insurance
company subject to certain provisions of the Code;
(5) which has the calendar year as its taxable year;
(6) the beneficial ownership of which is held by 100 or more
persons;
(7) during the last half of each taxable year not more than
50% in value of the outstanding stock of which is owned, directly or indirectly,
by five or fewer individuals (as defined in the Code to include certain exempt
organizations); and
(8) which meets certain income, asset and distribution tests,
described below.
Conditions (1) through (5), inclusive, must be satisfied
during the entire taxable year, and condition (6) must be satisfied during at
least 335 days of a taxable year of 12 months, or during a proportionate part of
a taxable year of less than 12 months. The Company has previously issued Common
Shares in sufficient proportions to allow it to satisfy requirements (6) and (7)
(the "100 Shareholder" and "five-or-fewer" requirements), respectively. In
addition, the Company's Declaration of Trust provides restrictions regarding the
transfer of its Shares that are intended to assist the Company in continuing to
satisfy the share ownership requirements described in (6) and (7) above. See
"Description of Shares of Beneficial Interest - Restrictions on Transfer."
However, these restrictions may not ensure that the Company will, in all cases,
be able to satisfy the share ownership requirements described in (6) and (7)
above. If the Company fails to satisfy such share ownership requirements, the
Company's status as a REIT will terminate. Pursuant to the 1997 Act, for the
Company's taxable years commencing on and after January 1, 1998, if the Company
complies with regulatory rules pursuant to which it is required to send annual
letters to certain of its shareholders requesting information regarding the
actual ownership of its shares, but does not know, or exercising reasonable
diligence would not have known, whether it failed to meet the requirement that
it not be closely held, the Company will be treated as having met the "five or
fewer" requirement. If the Company were to fail to comply with these regulatory
rules for any year, it would be subject to a $25,000 penalty. If the Company's
failure to comply was due to intentional disregard of the requirements, the
penalty would be increased to $50,000. However, if the Company's failure to
comply was due to reasonable cause and not willful neglect, no penalty would be
imposed. See "- Failure to Qualify."
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A REIT is permitted to have a wholly-owned subsidiary (also referred to
as a "qualified REIT subsidiary"). A qualified REIT subsidiary is not treated as
a separate entity for Federal income tax purposes. Rather, all of the assets and
items of income, deductions and credit of a qualified REIT subsidiary are
treated as if they were those of the REIT. The Company has formed several
qualified REIT subsidiaries and may in the future form one or more qualified
REIT subsidiaries. For the Company's 1997 taxable year, all of the stock of such
subsidiaries must be owned by the Company from the commencement of each such
subsidiary's existence. For taxable years of the Company beginning on and after
January 1, 1998, the Company must own all of the stock of each such subsidiary,
although it will not be required to own such stock of such subsidiary from the
commencement of such subsidiary's existence.
A REIT is deemed to own its proportionate share of the assets of a
partnership in which it is a partner and is deemed to receive its proportionate
share of the income of the partnership. Thus, the Company's proportionate share
of the assets and items of income of the Operating Partnership and each of the
Title Holding Partnerships will be treated as assets and items of income of the
Company for purposes of applying the requirements described herein, provided
that the Operating Partnership and its subsidiary partnerships are treated as
partnerships for Federal income tax purposes. In addition, the character of the
assets and gross income of such partnerships shall retain the same character in
the hands of the REIT for purposes of the requirements applicable to REITs under
the Code including satisfying the income tests and the asset tests. See "Income
Taxation of the Operating Partnership, the Title Holding Partnerships and Their
Partners."
Income Tests
To maintain qualification as a REIT, there are three gross income
requirements that must be satisfied annually. First, at least 75% of the
Company's gross income (excluding gross income from prohibited transactions) for
each taxable year must be derived directly or indirectly from investments
relating to real property or mortgages on real property (including "rents from
real property" and interest on obligations secured by a mortgage on real
property) or from "qualified temporary investment income" (described below).
Second, at least 95% of the Company's gross income (excluding gross income from
prohibited transactions) for each taxable year must be derived from investments
qualifying under the 75% test above, and from dividends, interest, and gain from
the sale or disposition of stock or securities or from any combination of the
foregoing. Third, for taxable years beginning on or before August 5, 1997,
short-term gain from the sale or other disposition of stock or securities, gain
from prohibited transactions, and gain on the sale or other disposition of real
property held for less than four years (apart from involuntary conversions and
sales of foreclosure property) must represent less than 30% of the Company's
gross income (including gross income from prohibited transactions) for each
taxable year. In applying these tests, the Company will be treated as realizing
its share of any income and bearing its share of any loss of the Operating
Partnership and the character of such income or loss, as well as other
partnership items, will be determined at the partnership level.
Rents received by the Company will qualify as "rents from real
property" for purposes of satisfying the 75% and 95% gross income tests only if
several conditions are met. First the amount of rent must not be based in whole
or in part on the income or profits of any person. However, an amount received
or accrued generally will not be excluded from the term "rents from real
property" solely by reason of being based on a fixed percentage or percentages
of receipts or sales. Second, the Code provides that rents received from a
tenant will not qualify as "rents from real property" if the REIT, or an owner
of 10% or more of the REIT, directly or constructively owns 10% or more of such
tenant (a "Related Party Tenant"). For the Company's taxable year which begins
on January 1, 1998 and for all taxable years thereafter, only partners who own
25% or more of the capital or profits interest in a partnership are included in
the determination of whether a tenant is a "Related Party Tenant." Third, if
rent attributable to personal property, leased in connection with a lease of
real property, is greater than 15% of the total rent received under the lease,
then the portion of rent attributable to such personal property will not qualify
as "rents from real property." Finally, for rents received to qualify as "rents
from real property," the REIT generally must not operate or manage the property
or furnish or render services to the tenants of such property, other than
through an "independent contractor" who is adequately compensated and from whom
the REIT does not derive any income; provided, however, that the Company may
directly perform certain customary services (e.g., furnishing water, heat, light
and air conditioning, and cleaning windows, public entrances and lobbies) other
than services which are considered rendered to the occupant of the property
(e.g., renting parking spaces on a reserved basis to tenants).
For taxable years of the Company beginning after August 5, 1997, if the
Company provides services to a tenant that are other than those usually or
customarily provided in connection with the rental of space for occupancy only,
amounts received or accrued by the Company for any such services will not be
treated as "rents from real property" for
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purposes of the REIT gross income tests but will not cause other amounts
received with respect to the property to fail to be treated as "rents from real
property" if the amounts received in respect of such services, together with
amounts received for certain management services, do not exceed 1% of all
amounts received or accrued by the Company during the taxable year with respect
to such property. If the 1% threshold is exceeded, then all amounts received or
accrued by the Company with respect to the property will not qualify as "rents
from real property," even if the impermissible services are provided to some,
but not all, of the tenants of the property.
The Company has represented that the Company's real estate investments,
which include its allocable share of income from the Operating Partnership, will
give rise to income that qualifies as "rents from real property" for purposes of
the 75 percent and 95 percent gross income tests, other than rents received from
a Related Party Tenant. In addition, the Company has represented that the rents
received from Related Party Tenants, in addition to all other income which is
not qualifying income for the 75 percent and 95 percent gross income tests, does
not exceed five percent of the Company's gross income, and therefore, the
Company's status as a REIT should not be jeopardized.
The Company has represented that it does not and will not (i) charge
rent for any property that is based in whole or in part on the income or profits
of any person (other than being based on a percentage of receipts or sales);
(ii) receive rents in excess of a de minimis amount from Related Party Tenants;
(iii) derive rents attributable to personal property which constitute greater
than 15% of the total rents received under the lease; or (iv) perform services
considered to be rendered to the occupant of property, other than through an
independent contractor from whom the Company derives no income.
The Operating Partnership owns 5% of the voting common stock, and all
of the preferred stock of the Management Company, a corporation that is taxable
as a regular corporation. The Management Company performs management,
development and leasing services for the Operating Partnership and other real
properties owned in whole or in part by third parties. The income earned by and
taxed to the Management Company would be nonqualifying income if earned directly
by the Company. As a result of the corporate structure, the income will be
earned by and taxed to the Management Company and will be received by the
Company only indirectly as dividends. Although interest and dividends are
generally qualifying income under the 95% test, the IRS has announced a
no-ruling policy on this issue when the dividends and interest are earned in
this manner.
If the Company fails to satisfy one or both of the 75% of 95% gross
income tests for any taxable year, it may nevertheless qualify as a REIT for
such year if it is entitled to relief under certain provisions of the Code.
These relief provisions will be generally available if (i) the Company's failure
to meet such tests was due to reasonable cause and not due to willful neglect,
(ii) the Company attaches a schedule of the sources of its income to its return,
and (iii) any incorrect information on the schedule was not due to fraud with
intent to evade tax. It is not possible, however, to state whether in all
circumstances the Company would be entitled to the benefit of these relief
provisions. As discussed above in "Taxation of the Company as a REIT," even if
these relief provisions apply, a tax would be imposed with respect to the excess
net income. No similar mitigation provision applies to provide relief if the 30%
income test is failed, and if such test is not met for the taxable years of the
Company beginning before January 1, 1998, the Company would cease to qualify as
a REIT. See "-- Failure to Qualify."
Asset Tests
In order for the Company to maintain its qualification as a REIT, at
the close of each quarter of its taxable year it must also satisfy three tests
relating to the nature of its assets. First, at least 75% of the value of the
Company's total assets must be represented by real estate assets (which for this
purpose include (i) its allocable share of real estate assets held by
partnerships in which the Company or a "qualified REIT subsidiary" of the
Company owns an interest and (ii) stock or debt instruments purchased with the
proceeds of a stock offering or a long-term (at least five years) debt offering
of the Company and held for not more than one year from the date the Company
receives such proceeds), cash, cash items, and government securities. Second,
not more than 25% of the Company's total assets may be represented by securities
other than those described above in the 75% asset class. Third, of the
investments included in the 25% asset class, the value of any one issuer's
securities owned by the Company may not exceed 5% of the value of the Company's
total assets, and the Company may not own more than 10% of any one issuer's
outstanding voting securities (excluding securities of a qualified REIT
subsidiary, of which the REIT is required to own all of such stock, or another
REIT).
The Company anticipates that it will be able to comply with these asset
tests. The Company is deemed to hold directly its proportionate share of all
real estate and other assets of the Operating Partnership and should be
considered
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to hold its proportionate share of all assets deemed owned by the Operating
Partnership through its ownership of partnership interests in other
partnerships. As a result, the Company plans to hold more than 75% of its assets
as real estate assets. In addition, the Company does not plan to hold any
securities representing more than 10% of any one issuer's voting securities,
other than any qualified REIT subsidiary of the Company, nor securities of any
one issuer exceeding 5% of the value of the Company's gross assets (determined
in accordance with generally accepted accounting principles). As previously
discussed, the Company is deemed to own its proportionate share of the assets of
a partnership in which it is a partner so that the partnership interest, itself,
is not a security for purposes of this asset test.
After initially meeting the asset tests at the close of any quarter,
the Company will not lose its status as a REIT for failure to satisfy the asset
tests at the end of a later quarter solely by reason of changes in asset values.
If the failure to satisfy the asset tests results from an acquisition of
securities or other property during a quarter, the failure can be cured by
disposition of sufficient nonqualifying assets within 30 days after the close of
that quarter. The Company intends to maintain adequate records of the value of
its assets to ensure compliance with the asset tests, and to take such other
action within 30 days after the close of any quarter as may be required to cure
any noncompliance. However, there can be no assurance that such other action
will always be successful. If the Company fails to cure any noncompliance with
the asset test within such time period, its status as a REIT would be lost.
As noted above, one of the requirements for qualification as a REIT is
that a REIT not own more than 10 percent of the voting stock of a corporation
other than the stock of a qualified REIT subsidiary (of which the REIT is
required to own all of such stock) and stock in another REIT. The Operating
Partnership will own only approximately 5 percent of the voting stock and all of
the non-voting preferred stock of the Management Company and therefore will
comply with this rule. However, the IRS could contend that the Company's
ownership, through its interest in the Operating Partnership, of all of the
non-voting preferred stock in the Management Company should be viewed as voting
stock because of its substantial economic position in the Management Company. If
the IRS were to be successful in such a contention, the Company's status as a
REIT would be lost and the Company would become subject to federal corporate
income tax on its net income, which would have a material adverse affect on the
Company's cash available for distribution. The Company does not have the ability
to designate a seat on the Board of Directors of the Management Company. The
Company does not believe that it will be viewed as owning in excess of 10
percent of the voting stock of the Management Company.
Administration's Proposed Changes to REIT Asset Tests
On February 2, 1998, the Clinton Administration released a summary of
its proposed budget plan, which contained provisions that, if enacted, would
affect REITs, including the Company (the "REIT Proposals"). One such provision
would prohibit REITs from owning more than ten percent of the vote or value of
all classes of stock of any corporation (other than a "qualified REIT
subsidiary" or another REIT). This provision would be effective with respect to
stock acquired on or after the date of the first committee action. However,
under the proposal, existing ownership arrangements such as the Company's
ownership of shares of the Management Company would be grandfathered, provided
that the subsidiary does not enter into a new trade or business or acquire
substantial new assets after the effective date of the change in the law.
Because the Company owns more than 10% of the value of the Management Company,
the REIT Proposals could adversely affect the manner in which the Company
structures its ownership of the Management Company and the magnitude of the
property management activities conducted by the Company in the future. It is
important to note that the REIT Proposals are only precursors to the first stage
in the lengthy legislative process that may or may not culminate in the passage
of legislation affecting REITs. Therefore, the Company is unable to determine
whether the REIT Proposals will be enacted into legislation and, if enacted, the
impact any final legislation may have on the Company.
Annual Distribution Requirements
The Company, in order to maintain its qualification as a REIT, is
required to distribute dividends (other than capital gain dividends) to its
shareholders in an amount at least equal to (A) the sum of (i) 95% of the
Company's "REIT taxable income" (computed without regard to the dividends paid
deduction and the REIT's net capital gain) and (ii) 95% of the net income (after
tax), if any, from foreclosure property, minus (B) the excess of the sum of
certain items of non-cash income (income attributable to leveled stepped rents,
original issue discount on purchase money debt, or a like-kind exchange that is
later determined to be taxable (plus, for the Company's 1998 taxable year and
thereafter, income from cancellation of indebtedness, original issue discount,
and coupon interest) over 5% of the amount determined under clause (i) above).
Such distributions must be paid in the taxable year to which they relate, or in
the following taxable
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year if declared before the Company timely files its tax return for such year
and if paid on or before the first regular dividend payment after such
declaration. To the extent that the Company does not distribute all of its net
capital gain or distributes at least 95%, but less than 100%, of its "REIT
taxable income," as adjusted, it will be subject to tax on the undistributed
amount at regular capital gains and ordinary corporate tax rates. Furthermore,
if the Company should fail to distribute during each calendar year at least the
sum of (i) 85% of its REIT ordinary income for such year, (ii) 95% of its REIT
net capital gain income for such year, and (iii) any undistributed taxable
income from prior periods, the Company would be subject to a 4% excise tax on
the excess of such required distribution over the amounts actually distributed.
For the Company's taxable year beginning on January 1, 1998 and for all
taxable years thereafter, undistributed capital gains may be so designated by
the Company and are includable in the income of the holders of Common Shares.
Such holders are treated as having paid the capital gains tax imposed on the
Company on the designated amounts included in their income as long-term capital
gains. Such shareholders would receive an increase in their basis for income
recognized and a decrease in their basis for taxes paid by the Company. See
"-Taxation of Taxable Domestic Shareholders."
The Company intends to make timely distributions sufficient to satisfy
the annual distribution requirements. In this regard, the limited partnership
agreement of the Operating Partnership authorizes the Company, as general
partner, to take such steps as may be necessary to cause the Operating
Partnership to distribute to its partners an amount sufficient to permit the
Company to meet these distribution requirements. It is possible that the
Company, from time to time, may not have sufficient cash or other liquid assets
to meet the 95% distribution requirement due primarily to the expenditure of
cash for nondeductible items such as principal amortization or capital
expenditures. In order to meet the 95% distribution requirement, the Company may
borrow or may cause the Operating Partnership to arrange for short-term or other
borrowing to permit the payment of required distributions or attempt to declare
a consent dividend, which is a hypothetical distribution to holders of Common
Shares out of the earnings and profits of the Company. The effect of such a
consent dividend (which, in conjunction with distributions actually paid, must
not be preferential to those holders who agree to such treatment) would be that
such holders would be treated for federal income tax purposes as if they had
received such amount in cash, and they then had immediately contributed such
amount back to the Company as additional paid-in capital. This would result in
taxable income to those holders without the receipt of any actual cash
distribution but would also increase their tax basis in their Common Shares by
the amount of the taxable income recognized.
Under certain circumstances, the Company may be able to rectify a
failure to meet the distribution requirement for a certain year by paying
"deficiency dividends" to shareholders in a later year that may be included in
the Company's deduction for distributions paid for the earlier year. Thus, the
Company may be able to avoid being taxed on amounts distributed as deficiency
dividends; however, the Company will be required to pay to the IRS interest
based upon the amount of any deduction taken for deficiency dividends.
Failure to Qualify
If the Company fails to qualify for taxation as a REIT in any taxable
year and the relief provisions do not apply, the Company will be subject to tax
(including any applicable corporate alternative minimum tax) on its taxable
income at regular corporate rates. Distributions to shareholders in any year in
which the Company fails to qualify will not be deductible by the Company, nor
will they be required to be made. In such event, to the extent of current and
accumulated earnings and profits, all distributions to shareholders will be
taxable to them as ordinary income, and, subject to certain limitations of the
Code, corporate distributees may be eligible for the dividends received
deduction. Unless entitled to relief under specific statutory provisions, the
Company also will be disqualified from taxation as a REIT for the four taxable
years following the year during which qualification was lost. It is not possible
to state whether in all circumstances the Company would be entitled to such
statutory relief.
Income Taxation of the Operating Partnership, the Title Holding Partnerships and
Their Partners
The following discussion summarizes certain Federal income tax
considerations applicable to the Company's investment in the Operating
Partnership and its subsidiary partnerships (referred to herein as the "Title
Holding Partnerships").
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Classification of the Operating Partnership and Title Holding, Partnerships as
Partnerships
As of the date of this Prospectus, the Company owns all of the
Properties or the economic interests therein through the Operating Partnership.
The Company will be entitled to include in its income its distributive share of
the income and to deduct its distributive share of the losses of the Operating
Partnership (including the Operating Partnership's share of the income or losses
of the Title Holding Partnerships) only if the Operating Partnership and the
Title Holding Partnerships (collectively, the "Partnerships") are classified for
Federal income tax purposes as partnerships rather than as associations taxable
as corporations. For taxable periods prior to January 1, 1997, an organization
formed as a partnership was treated as a partnership for Federal income tax
purposes rather than as a corporation only if it had no more than two of the
four corporate characteristics that the Treasury Regulations used to distinguish
a partnership from a corporation for tax purposes. These four characteristics
were continuity of life, centralization of management, limited liability, and
free transferability of interests.
Neither the Operating Partnership nor any of the Title Holding
Partnerships requested a ruling from the IRS that they would be treated as
partnerships for Federal income tax purposes. The Company received an opinion of
the Tax Advisor, which is not binding on the IRS, that the Operating Partnership
and the Title Holding Partnerships will each be treated as partnerships for
Federal income tax purposes and not as an association or publicly traded
partnership taxable as a corporation. The opinion of the Tax Advisor is based on
the provisions of the limited partnership agreement of the Operating Partnership
and the limited partnership agreements of the Title Holding Partnerships,
respectively, and certain factual assumptions and representations described in
the opinion.
Effective January 1, 1997, newly promulgated Treasury Regulations
eliminated the four-factor test described above and, instead, permit
partnerships and other non-corporate entities to be taxed as partnerships for
federal income tax purposes without regard to the number of corporate
characteristics possessed by such entity. Under those Regulations, both the
Operating Partnership and each of the Title Holding Partnerships will be
classified as partnerships for federal income tax purposes unless an affirmative
election is made by the entity to be taxed as a corporation. The Company has
represented that no such election has been made, or is anticipated to be made,
on behalf of the Operating Partnership or any of the Title Holding Partnerships.
Under a special transitional rule in the Treasury Regulations, the IRS will not
challenge the classification of an existing entity such as the Operating
Partnership or a Title Holding Partnership for periods prior to January 1, 1997
if: (i) the entity has a "reasonable basis" for its classification; (ii) the
entity and each of its members recognized the federal income tax consequences of
any change in classification of the entity made within the 60 months prior to
January 1, 1997; and (iii) neither the entity nor any of its members had been
notified in writing on or before May 8, 1996 that its classification was under
examination by the IRS. Neither the Operating Partnership nor any of the Title
Holding Partnerships changed their classification within the 60 month period
preceding May 8, 1996, nor was any one of them notified that their
classification as a partnership for federal income tax purposes was under
examination by the IRS.
If for any reason the Operating Partnership or a Title Holding
Partnership was classified as an association taxable as a corporation rather
than as a partnership for Federal income tax purposes, the Company would not be
able to satisfy the income and asset requirements for REIT status. See "--
Income Tests" and "--Asset Tests." In addition, any change in any such
Partnership's status for tax purposes might be treated as a taxable event, in
which case the Company might incur a tax liability without any related cash
distribution. See "--Annual Distribution Requirements." Further, items of income
and deduction of any such Partnership would not pass through to its partner
(e.g., the Company), and its partners would be treated as shareholders for tax
purposes. Any such Partnership would be required to pay income tax at corporate
tax rates on its net income and distributions to its partners would constitute
dividends that would not be deductible in computing such Partnership's taxable
income.
Partnership Allocations
Although a partnership agreement will generally determine the
allocation of income and losses among partners, such allocations will be
disregarded for tax purposes if they do not comply with the provisions of
Section 704(b) and the Treasury Regulations promulgated thereunder, which
require that partnership allocations respect the economic arrangement of the
partners.
If an allocation is not recognized for Federal income tax purposes, the
item subject to the allocation will be reallocated in accordance with the
partners' interests in the partnership, which will be determined by taking into
account all of the facts and circumstances relating to the economic arrangement
of the partners with respect to such item. The
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Operating Partnership's allocations of taxable income and loss are intended to
comply with the requirements of Section 704(b) of the Code and the Treasury
Regulations promulgated thereunder.
Tax Allocations With Respect to Contributed Properties
The Company has represented that the fair market values of 44 of the
Properties contributed directly or indirectly to the Operating Partnership in
various transactions were different than the tax basis of such Properties.
Pursuant to Section 704(c) of the Code, items of income, gain, loss, and
deduction attributable to appreciated or depreciated property that is
contributed to a partnership in exchange for an interest in the partnership must
be allocated for Federal income tax purposes in a manner such that the
contributor is charged with or benefits from the unrealized gain or unrealized
loss associated with the property at the time of the contribution. The amount of
such unrealized gain or unrealized loss is generally equal to the difference
between the fair market value of the contributed property at the time of
contribution and the adjusted tax basis of such property at the time of
contribution (the "Pre-Contribution Gain or Loss"). The partnership agreement of
the Operating Partnership requires allocations of income, gain, loss and
deduction attributable to such contributed property to be made in a manner that
is consistent with Section 704(c) of the Code. Thus, if the Operating
Partnership sells contributed property at a gain or loss, such gain or loss will
be allocated to the contributing partners, and away from the Company, generally
to the extent of the Pre-Contribution Gain or Loss.
The Treasury Department has issued final regulations under Section
704(c) of the Code (the "Regulations") which give partnerships great flexibility
in ensuring that a partner contributing property to a partnership receives the
tax benefits and burdens of any Pre-Contribution Gain or Loss attributable to
the contributed property. The Regulations permit partnerships to use any
"reasonable method" of accounting for Pre-Contribution Gain or Loss. The
Regulations specifically describe three reasonable methods, including (i) the
"traditional method" under current law, (ii) the traditional method with the use
of "curative allocations" which would permit distortions caused by
Pre-Contribution Gain or Loss to be rectified on an annual basis, and (iii) the
"remedial allocation method" which is similar to the traditional method with
"curative allocations." The Partnership Agreement permits the Company, as a
general partner, to select one of these methods to account for Pre-Contribution
Gain or Loss.
Depreciation
The Operating Partnership's assets other than cash consist largely of
appreciated property contributed by its partners. Assets contributed to a
partnership in a tax-free transaction generally retain the same depreciation
method and recovery period as they had in the hands of the partner who
contributed them to the partnership. Accordingly, the Operating Partnership's
depreciation deductions for its real property are based largely on the historic
tax depreciation schedules for the Properties prior to their contribution to the
Operating Partnership. The Properties are being depreciated over a range of 15
to 40 years using various methods of depreciation which were determined at the
time that each item of depreciable property was placed in service. Any real
property purchased by the Partnerships will be depreciated over 40 years. In
certain instances where a partnership interest rather than real property is
contributed to the Partnership, the real property may not carry over its
recovery period but rather may, similarly, be subject to the lengthier recovery
period.
Section 704(c) of the Code requires that depreciation as well as gain
and loss be allocated in a manner so as to take into account the variation
between the fair market value and tax basis of the property contributed. Thus,
because most of the property contributed to the Operating Partnerships is
appreciated, the Company will generally receive allocations of tax depreciation
in excess of its percentage interest in the Operating Partnership. Depreciation
with respect to any property purchased by the Operating Partnership subsequent
to the admission of its partners, however, will be allocated among the partners
in accordance with their respective percentage interests in the Partnerships.
As described above (see "- Tax Allocations with Respect to Contributed
Properties"), the Treasury Department's Regulations give partnerships
flexibility in ensuring that a partner contributing property to a partnership
receives the tax benefits and burdens of any Pre-Contribution Gain or Loss
attributable to the contributed property.
As described previously, the Company, as a general partner, may select
any permissible method to account for Pre-Contribution Gain or Loss. The use of
certain of these methods may result in the Company being allocated lower
depreciation deductions than if a different method were used. The resulting
higher taxable income and earnings and profits of the Company, as determined for
federal income tax purposes, should decrease the portion of distributions by the
Company which may be treated as a return of capital. See "- Annual Distribution
Requirements."
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Basis in Operating Partnership Interest
The Company's adjusted tax basis in each of the partnerships in which
it has an interest generally (i) will be equal to the amount of cash and the
basis of any other property contributed to such partnership by the Company, (ii)
will be increased by (a) its allocable share of such partnership's income and
(b) its allocable share of any indebtedness of such partnership, and (iii) will
be reduced, but not below zero, by the Company's allocable share of (a) such
partnership's loss and (b) the amount of cash and the tax basis of any property
distributed to the Company and by constructive distributions resulting from a
reduction in the Company's share of indebtedness of such partnership.
If the Company's allocable share of the loss (or portion thereof) of
any partnership in which it has an interest would reduce the adjusted tax basis
of the Company's partnership interest in such partnership below zero, the
recognition of such loss will be deferred until such time as the recognition of
such loss (or portion thereof) would not reduce the Company's adjusted tax basis
below zero. To the extent that distributions from a partnership to the Company,
or any decrease in the Company's share of the nonrecourse indebtedness of a
partnership (each such decrease being considered a constructive cash
distribution to the partners), would reduce the Company's adjusted tax basis
below zero, such distributions (including such constructive distributions) would
constitute taxable income to the Company. Such distributions and constructive
distributions normally would be characterized as long-term capital gain if the
Company's interest in such partnership has been held for longer than the
long-term capital gain holding period (currently 18 months).
Sale of Partnership Property
Generally, any gain realized by a partnership on the sale of property
held by the partnership for more than 18 months will be long-term capital gain,
except for any portion of such gain that is treated as depreciation or cost
recovery recapture. However, under the requirements applicable to REITS under
the Code, the Company's share as a partner of any gain realized by the Operating
Partnership on the sale of any property held as inventory or other property held
primarily for sale to customers in the ordinary course of a trade or business
will be treated as income from a prohibited transaction that is subject to a
100% penalty tax. See "- Taxation of the Company as a REIT." Such prohibited
transaction income will also have an adverse effect upon the Company's ability
to satisfy the income tests for REIT status. See "-- Income Tests." Under
existing law, whether property is held as inventory or primarily for sale to
customers in the ordinary course of a trade or business is a question of fact
that depends on all the facts and circumstances with respect to the particular
transaction. A safe harbor to avoid classification as a prohibited transaction
exists as to real estate assets held for the production of rental income by a
REIT for at least four years where in any taxable year the REIT has made no more
than seven sales of property or, in the alternative, the aggregate of the
adjusted bases of all properties sold does not exceed 10% of the adjusted bases
of all of the REIT's properties during the year and the expenditures includible
in a property's net sales price. The Company, as general partner of the
Operating Partnership, has represented that the Operating Partnership and the
Title Holding Partnerships intend to hold the Properties for investment with a
view to long-term appreciation, to engage in the business of acquiring,
developing, owning, and operating and leasing properties and to make such
occasional sales of the properties as are consistent with the Company's and the
Operating Partnership's investment objectives. No assurance can be given,
however, that every property sale by the Partnerships will constitute a sale of
property held for investment.
Taxation of Taxable Domestic Shareholders
As long as the Company qualifies as a REIT, distributions made to the
Company's taxable U.S. shareholders out of current or accumulated earnings and
profits (and not designated as capital gain dividends) will be dividends taxable
to such U.S. shareholders as ordinary income and will not be eligible for the
dividends received deduction for corporations. Distributions that are designated
as capital gain dividends will be taxed as long-term capital gains (to the
extent they do not exceed the Company's actual net capital gain for the taxable
year) without regard to the period for which the shareholder has held its shares
of beneficial interest. However, corporate shareholders may be required to treat
up to 20% of certain capital gain dividends as ordinary income. Distributions in
excess of current and accumulated earnings and profits will not be taxable to a
shareholder to the extent that they do not exceed the adjusted basis of the
shareholder's shares, but rather will reduce the adjusted basis of such shares.
To the extent that distributions in excess of current and accumulated earnings
and profits exceed the adjusted basis of a shareholder's shares, such
distributions will be included in income as long-term capital gain (or
short-term capital gain if the shares have been held for 18 months or less)
assuming the shares are a capital asset in the hands of the shareholder. In
addition, any distribution declared by the Company in October, November or
December of any year payable to a shareholder of record on a specified date in
any such month shall be treated as both paid by the Company and received by the
shareholder on December 31 of such
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year, provided that the distribution is actually paid by the Company during
January of the following calendar year. Shareholders may not include in their
individual income tax returns any losses of the Company.
For taxable years of the Company beginning after August 5, 1997, U.S.
shareholders holding Shares at the close of the Company's taxable year will be
required to include, in computing their long-term capital gains for the taxable
year in which the last day of the Company's taxable year falls, such amount as
the Company may designate in a written notice mailed to its shareholders. The
Company may not designate amounts in excess of the Company's undistributed net
capital gain for the taxable year. Each U.S. shareholder required to include
such a designated amount in determining such shareholder's long-term capital
gains will be deemed to have paid, in the taxable year of the inclusion, the tax
paid by the Company in respect of such undistributed net capital gains. U.S.
shareholders subject to these rules will be allowed a credit or a refund, as the
case may be, for the tax deemed to have been paid by such shareholders. U.S.
shareholders will increase their basis in their Shares by the difference between
the amount of such includible gains and the tax deemed paid by the shareholder
in respect of such gains.
In general, any loss upon a sale or exchange of shares by a shareholder
who has held such shares for six months or less (after applying certain holding
period rules) will be treated as a long-term capital loss to the extent such
shareholder has received distributions from the Company required to be treated
as long-term capital gain.
Distributions from the Company and gain from the disposition of Common
Shares will not be treated as passive activity income and, therefore,
shareholders may not be able to apply any "passive losses" against such income.
Dividends from the Company (to the extent they do not constitute a return of
capital or capital gain dividends) and, on an elective basis, capital gain
dividends and gain from the disposition of Common Shares will generally be
treated as investment income for purposes of the investment income limitation.
Backup Withholding
The Company will report to its U.S. shareholders and the IRS the amount
of distributions paid during each calendar year, and the amount of tax withheld,
if any. Under the backup withholding rules, a shareholder may be subject to
backup withholding at the rate of 31% with respect to distributions paid unless
such holder (a) is a corporation or comes within certain other exempt categories
and, when required, demonstrates this fact, or (b) provides a taxpayer
identification number, certifies as to no loss of exemption from backup
withholding and otherwise complies with applicable requirements of the backup
withholding rules. A shareholder that does not provide the Company with his
correct taxpayer identification number may also be subject to penalties imposed
by the IRS. Any amount paid as backup withholding will be creditable against the
shareholder's income tax liability. In addition, the Company may be required to
withhold a portion of capital gain distributions to any shareholders who fail to
certify their non-foreign status to the Company. See "- Taxation of Foreign
Shareholders."
Taxation of Tax-Exempt Shareholders
Distributions by the Company to a shareholder that is a tax-exempt
entity should not constitute "unrelated business taxable income" ("UBTI"), as
defined in Section 512(a) of the Code provided that the tax-exempt entity has
not financed the acquisition of its shares with "acquisition indebtedness"
within the meaning of the Code and the shares are not otherwise used in an
unrelated trade or business of the tax-exempt entity.
In the case of a "qualified trust" (generally, a pension or
profit-sharing trust) holding shares in a REIT, the beneficiaries of such a
trust are treated as holding shares in the REIT in proportion to their actuarial
interests in the qualified trust, instead of treating the qualified trust as a
single individual (the "look-through exception"). A qualified trust that holds
more than 10 percent of the shares of a REIT is required to treat a percentage
of REIT dividends as UBTI if the REIT incurs debt to acquire or improve real
property. This rule applies, however, only if (i) the qualification of the REIT
depends upon the application of the "look through" exception (described above)
to the restriction on REIT shareholdings by five or fewer individuals, including
qualified trusts (see "Description of Shares of Beneficial Interest Restrictions
on Transfer") and (ii) the REIT is "predominantly held" by qualified trusts,
i.e., if either (x) a single qualified trust holds more than 25 percent by value
of the interests in the REIT or (y) one or more qualified trusts, each owning
more than 10 percent by value, holds in the aggregate more than 50 percent of
the interests in the REIT. The percentage of any dividend paid (or treated as
paid) to such a qualified trust that is treated as UBTI is equal to the amount
of modified gross income (gross income less directly connected expenses) from
the unrelated trade or business of the REIT
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(treating the REIT as if it were a qualified trust), divided by the total
modified gross income of the REIT. A de minimis exception applies where the
percentage is less than 5 percent.
Taxation of Foreign Shareholders
The rules governing United States Federal income taxation of
nonresident alien individuals, foreign corporations, foreign partnerships and
other foreign shareholders (collectively, "Non-U.S. Shareholders") are complex
and no attempt will be made herein to provide more than a summary of such rules.
Prospective Non-U.S. Shareholders should consult with their own tax advisors to
determine the impact of Federal, state and local income tax laws with regard to
an investment in Common Shares, including any reporting requirements.
Distributions that are not attributable to gain from sales or exchanges
by the Company of United States real property interests and not designated by
the Company as capital gains dividends will be treated as dividends of ordinary
income to the extent that they are made out of current or accumulated earnings
and profits of the Company. Such distributions will ordinarily be subject to a
withholding tax equal to 30% of the gross amount of the distribution unless an
applicable tax treaty reduces or eliminates that tax. However, if income from
the investment in the Common Shares is treated as effectively connected with the
Non-U.S. Shareholder's conduct of a United States trade or business, the
Non-U.S. Shareholder generally will be subject to a tax at graduated rates, in
the same manner as U.S. shareholders are taxed with respect to such
distributions (and may also be subject to the 30% branch profits tax in the case
of a shareholder that is a foreign corporation). The Company expects to withhold
United States income tax at the rate of 30% on the gross amount of any such
distributions made to a Non-U.S. Shareholder unless (i) a lower treaty rate
applies or (ii) the Non-U.S. Shareholder files an IRS Form 4224 with the Company
claiming that the distribution is effectively connected income. Distributions in
excess of current and accumulated earnings and profits of the Company will not
be taxable to a shareholder to the extent that such distributions do not exceed
the adjusted basis of the shareholder's shares, but rather will reduce the
adjusted basis of such shares. To the extent that distributions in excess of
current and accumulated earnings and profits exceed the adjusted basis of a
Non-Shareholder's shares, such distributions will give rise to tax liability if
the Non-U.S. Shareholder would otherwise be subject to tax on any gain from the
sale or disposition of his shares in the Company, as described below. If it
cannot be determined at the time a distribution is made whether or not such
distribution will be in excess of current and accumulated earnings and profits,
the distributions will be subject to withholding at the same rate as dividends.
However, amounts thus withheld are refundable if it is subsequently determined
that such distribution was, in fact, in excess of current and accumulated
earnings and profits of the Company.
For any year in which the Company qualifies as a REIT, distributions
that are attributable to gain from sales or exchanges by the Company of United
States real property interests will be taxed to a Non-U.S. Shareholder under the
provisions of the Foreign Investment in Real Property Tax Act of 1980
("FIRPTA"). Under FIRPTA, distributions attributable to gain from sales of
United States real property interests are taxed to a Non-U.S. Shareholder as if
such gain were effectively connected with a United States business. Non-U.S.
Shareholders would thus be taxed at the normal capital gain rates applicable to
U.S. shareholders (subject to applicable alternative minimum tax and a special
alternative minimum tax in the case of nonresident alien individuals). Also,
distributions subject to FIRPTA may be subject to a 30% branch profits tax in
the hands of a foreign corporate shareholder not entitled to treaty exemption.
The Company is required by applicable Treasury Regulations to withhold 35% of
any distribution that could be designated by the Company as a capital gains
dividend. The amount is creditable against the Non-U.S. Shareholder FIRPTA tax
liability.
Gain recognized by a Non-U.S. Shareholder upon a sale of Shares
generally will not be taxed under FIRPTA if the Company is a "domestically
controlled REIT," defined generally as a REIT in which at all times during a
specified testing period less than 50% in value of the shares of beneficial
interest was held directly or indirectly by foreign persons. It is currently
anticipated that the Company will be a "domestically controlled REIT," and
therefore the sale of Shares will not be subject to taxation under FIRPTA.
However, because the Common Shares will be publicly traded, no assurance can be
given that the Company will continue to be a "domestically controlled REIT."
Gain not subject to FIRPTA will be taxable to a Non-U.S. Shareholder if (i)
investment in the shares is effectively connected with the Non-U.S.
Shareholder's United States trade or business, in which case the Non-U.S.
Shareholder will be subject to the same treatment as U.S. shareholders with
respect to such gain or (ii) the Non-U.S. Shareholder is a nonresident alien
individual who was present in the United States for 183 days or more during the
taxable year, in which case the nonresident alien individual will be subject to
a 30% tax on the individual's capital gains. If the gain on the sale of Shares
were to be subject to taxation under FIRPTA, the Non-U.S. Shareholder would be
subject to the same treatment as U.S. shareholders with respect to such gain
(subject to applicable alternative minimum tax and a special alternative minimum
tax in the case of nonresident alien individuals).
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Taxation of Holders of Debt Securities
Certain Definitions. As used herein, the term "U.S. Holder" means a
holder of a Debt Security who (for United States Federal income tax purposes) is
(i) a citizen or resident of the United States, (ii) a domestic corporation,
(iii) an estate, the income of which is subject to United States federal income
tax without regard to its source, (iv) a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more United States persons have the authority to control all
substantial decisions of the trust, or (v) any other person who is subject to
United States Federal income taxation on a net income basis with respect to a
Debt Security . As used herein, the term "U.S. Alien Holder" means a holder of a
Debt Security who is not a U.S. Holder. In the case of a holder of a Debt
Security that is a partnership for United States tax purposes, each partner will
take into account its allocable share of income or loss from the Debt Security,
and will take such income or loss into account under the rules of taxation
applicable to such partner, taking into account the partnership and the partner.
Payments of interest to U.S. Holders. Interest on a Debt Security will
be taxable to a U.S. Holder as ordinary income at the time it is received or
accrued, depending on the U.S. Holder's method of accounting for tax purposes.
Purchase, sale and retirement of the Debt Securities by U.S. Holders. A
U.S. Holder's tax basis in a Debt Security will generally be its U.S. dollar
cost.
A U.S. Holder will generally recognize gain or loss on the sale or
retirement of a Debt Security equal to the difference between the amount
realized on the sale or retirement and the U.S. Holder's tax basis in the Debt
Security. Except to the extent attributable to accrued but unpaid interest, gain
or loss recognized on the sale or retirement of a Debt Security will be capital
gain or loss, will be a long-term capital gain or loss if the Debt Security was
held for more than one year and may be eligible for a reduced rate of tax if the
Debt Security was held for more than 18 months and in certain other
circumstances.
U.S. Alien Holders. This discussion assumes that the Debt Security is
not subject to the rules of Section 871(h)(4)(A) of the Code (relating to
interest payments that are determined by reference to the income, profits,
changes in the value of property or other attributes of the debtor or a related
party).
Under present United States Federal income and estate tax law, and
subject to the discussion of backup withholding above:
(i) payments of principal, premium (if any) and interest by
the Operating Partnership or any of its paying agents to any holder of a Debt
Security that is a U.S. Alien Holder will not be subject to United States
Federal withholding tax if, in the case of interest (a) the beneficial owner of
the Debt Security does not actually or constructively own 10% or more of the
capital or profits interest in the Operating Partnership, (b) the beneficial
owner of the Debt Security is not a controlled foreign corporation that is
related to the Operating Partnership through stock ownership, and (c) either (A)
the beneficial owner of the Debt Security certifies to the Operating Partnership
or its agent, under penalties of perjury, that it is not a U.S. person and
provides its name and address or (B) a securities clearing organization, bank or
other financial institution that holds customers' securities in the ordinary
course of its trade or business (a "financial institution") and holds the Debt
Security certifies to the Operating Partnership or its agent under penalties of
perjury that such statement has been received from the beneficial owner by it or
by a financial institution between it and the beneficial owner and furnishes the
payor with a copy thereof;
(ii) a U.S. Alien Holder of a Debt Security will not be
subject to United States Federal withholding tax on any gain realized on the
sale or exchange of a Debt Security; and
(iii) a Debt Security held by an individual who at death is
not a citizen or resident of the United States will not be includible in the
individual's gross estate for purposes of the United States Federal estate tax
as a result of the individual's death if (a) the individual did not actually or
constructively own 10% or more of the capital or profits interest in the
Operating Partnership, and (b) the income on the Debt Security would not have
been effectively connected with a United States trade or business of the
individual at the time of the individual's death.
Special rules may apply in the case of U.S. Alien Holders (i) that are
engaged in a United States trade or business, (ii) that are former citizens or
long term residents of the United States, "controlled foreign corporations,"
"foreign personal holding companies," corporations which accumulate earnings to
avoid United States Federal income
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tax, and certain foreign charitable organizations, each within the meaning of
the Code, or (iii) certain non-resident alien individuals who are present in the
United States for 183 days or more during a taxable year. Such persons are urged
to consult their own tax advisors before purchasing a Debt Security.
Statement of Stock Ownership
The Company is required to demand annual written statements from the
record holders of designated percentages of its Shares disclosing the actual
owners of the Shares. The Company must also maintain, within the Internal
Revenue District in which it is required to file its federal income tax return,
permanent records showing the information it has received as to the actual
ownership of such Shares and a list of those persons failing or refusing to
comply with such demand.
Other Tax Consequences
The Company, the Operating Partnership, the Title Holding Partnerships
and the Company's shareholders may be subject to state or local taxation in
various state or local jurisdictions, including those in which it or they
transact business or reside. The state and local tax treatment of the Company,
the Operating Partnership, the Title Holding Partnerships and the Company's
shareholders may not conform to the Federal income tax consequences discussed
above. Consequently, prospective shareholders should consult their own tax
advisors regarding the effect of state and local tax laws on an investment in
the Company.
Possible Federal Tax Developments
The rules dealing with Federal income taxation are constantly under
review by the IRS, the Treasury Department and Congress. New Federal tax
legislation or other provisions may be enacted into law or new interpretations,
rulings, Treasury Regulations or court decisions could be adopted, all of which
could adversely affect the taxation of the Company or of its shareholders. No
prediction can be made as to the likelihood of passage of any new tax
legislation or other provisions or court decisions either directly or indirectly
affecting the Company or its shareholders. Consequently, the tax treatment
described herein may be modified prospectively or retroactively by legislative,
judicial or administrative action.
PLAN OF DISTRIBUTION
The Company and the Operating Partnership may sell the Securities to
one or more underwriters for public offering and sale by them or may sell the
Securities directly to one or more investors or through agents or through a
combination of any of such methods. Any such underwriter or agent involved in
the offer and sale of the Securities will be named in the applicable prospectus
supplement.
The Company, the Operating Partnership or underwriters may offer and
sell the Securities at a fixed price or prices, which may be changed, at prices
related to the prevailing market prices at the time of sale or at negotiated
prices for cash or assets. The Company or the Operating Partnership also may,
from time to time, authorize underwriters acting as their agents to offer and
sell the Securities upon the terms and conditions as are set forth in the
applicable prospectus supplement. In connection with the sale of the Securities,
underwriters may be deemed to have received compensation from the Company or the
Operating Partnership in the form of underwriting discounts or commissions and
may also receive commissions from purchasers of the Securities for whom they may
act as agent. Underwriters may sell Securities to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent.
Any underwriting compensation paid by the Company or the Operating
Partnership to underwriters or agents in connection with the offering of the
Securities, and any discounts, concessions or commissions allowed by
underwriters to participating dealers, will be set forth or described in the
applicable prospectus supplement. Underwriters, dealers and agents participating
in the distribution of the Securities may be deemed to be underwriters, and any
discounts and commissions received by them and any profit realized by them on
resale of the Securities may be deemed to be underwriting discounts and
commissions under the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements
entered into with the Company or the Operating Partnership, to indemnification
against and contribution toward certain civil liabilities, including liabilities
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under the Securities Act. In the opinion of the Commission, such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
Unless otherwise specified in the related prospectus supplement, each
series of Securities will be a new issue with no established trading market,
other than the Common Shares which are listed on the NYSE. Any Common Shares
sold pursuant to a prospectus supplement will be listed on the NYSE, subject to
official notice of issuance. The Operating Partnership or the Company may elect
to list any series of Debt Securities, Preferred Shares or American Depository
Receipts representing Depository Shares on an exchange, but is not obligated to
do so. It is possible that one or more underwriters may make a market in a
series of Securities, but will not be obligated to do so and may discontinue any
market making at any time without notice. Therefore, no assurance can be given
as to the liquidity of, or the trading market for, the Securities.
If so indicated in the applicable prospectus supplement, the Company
will authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Equity Securities from the
Company at the public offering price set forth in such prospectus supplement
pursuant to Delayed Delivery Contracts ("Contracts") providing for payment and
delivery on the date or dates stated in such prospectus supplement. Institutions
with whom Contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions, and other institutions but will in all cases be subject
to the approval of the Company. Contracts will not be subject to any conditions
except: (i) the purchase by an institution of the Equity Securities covered by
its Contracts shall not at the time of delivery be prohibited under the laws of
any jurisdiction in the United States to which such institution is subject, and
(ii) if the Equity Securities are being sold to underwriters, the Company shall
have sold to such underwriters the total principal amount of the Equity
Securities less the principal amount thereof covered by Contracts.
If so indicated in the applicable prospectus supplement, the Operating
Partnership will authorize underwriters or other persons acting as the Operating
Partnership's agents to solicit offers by certain institutions to purchase Debt
Securities from the Operating Partnership at the public offering price set forth
in such prospectus supplement pursuant to Contracts providing for payment and
delivery on the date or dates stated in such prospectus supplement. Each
Contract will be for an amount not less than, and the aggregate principal amount
of Debt Securities sold pursuant to Contracts shall be not less nor more than,
the respective amounts stated in the applicable prospectus supplement.
Institutions with whom Contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions, and other institutions but
will in all cases be subject to the approval of the Operating Partnership.
Contracts will not be subject to any conditions except (i) the purchase by an
institution of the Debt Securities covered by its Contracts shall not at the
time of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject, and (ii) if the Debt Securities are
being sold to underwriters, the Operating Partnership shall have sold to such
underwriters the total principal amount of the Debt Securities less the
principal amount thereof covered by Contracts.
Underwriters, dealers and agents and their affiliates may engage in
transactions with, or perform services for, or be tenants of, the Company and
its subsidiaries in the ordinary course of business.
EXPERTS
The audited financial statements and schedules (other than financial
statements identified in the next sentence) incorporated by reference in this
Prospectus and elsewhere in the Registration Statement to the extent and for the
periods indicated in their reports have been audited by Arthur Andersen LLP,
independent public accountants, and are included herein in reliance upon the
authority of said firm as experts in giving said reports. The financial
statements with respect to 1000/2000 West Lincoln Drive, 3000 West Lincoln Drive
and 4000/5000 West Lincoln Drive incorporated by reference in this Prospectus
from the Current Report on Form 8-K of the Company, dated June 27, 1997, have
been audited by Zelenkofske, Axelrod & Company, Ltd., independent public
accountants, as indicated in their report and are included herein in reliance
upon the authority of said firm as experts in giving said report.
Future financial statements of the Company and the Operating
Partnership and the reports thereon of the Company's and the Operating
Partnership's independent public accountants also will be incorporated by
reference in this Prospectus in reliance upon the authority of that firm as
experts in giving those reports to the extent said firm has audited those
financial statements and consented to the use of their reports thereon.
-53-
<PAGE>
LEGAL MATTERS
Unless otherwise set forth in a prospectus supplement, the validity of
the Securities offered hereby will be passed upon for the Company and the
Operating Partnership by Pepper Hamilton LLP, Philadelphia, Pennsylvania. Unless
otherwise set forth in a prospectus supplement, Unless otherwise set forth in a
prospectus supplement, Pepper Hamilton LLP will rely on Ballard Spahr Andrews &
Ingersoll, LLP Baltimore, Maryland, as to certain matters of Maryland law.
TAX MATTERS
The opinion regarding the statements in this Prospectus under the
caption "Federal Income Tax Considerations" has been rendered by Arthur Andersen
LLP, independent public accountants, and has been referred to herein in reliance
upon the authority of such firm as experts in giving said opinion.
-54-
<PAGE>
================================================================================
PROSPECTUS
===============================
BRANDYWINE REALTY TRUST
$663,129,026
Preferred Shares, Common Shares, Depositary Shares and Warrants
----------
BRANDYWINE OPERATING PARTNERSHIP, L.P.
$750,000,000
Debt Securities
----------
[ ], 1998
================================================================================
No dealer, salesperson or other individual has been authorized to give
any information or to make any representations not contained in this Prospectus
in connection with the offering covered by this Prospectus. If given or made,
such information or representations must not be relied upon as having been
authorized by the Company or the Selling Shareholders. This Prospectus does not
constitute an offer to sell, or a solicitation of an offer to buy, the Common
Shares, in any jurisdiction where, or to any person to whom, it is unlawful to
make any such offer or solicitation. Neither the delivery of this Prospectus nor
any offer or sale made hereunder shall, under any circumstances, create an
implication that there has not been any change in the facts set forth in this
Prospectus or in the affairs of the Company since the date hereof.
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses for the
distribution of the securities being registered. Such costs and expenses do not
include amounts that may be incurred upon the issuance of certain types of
securities registered hereunder.
SEC Registration Fee..................................... $ 221,250
Printing and Duplicating Expenses........................ 50,000
Legal Fees and Expenses (other than Blue Sky fees)....... 100,000
Accounting Fees and Expenses............................. 100,000
Miscellaneous............................................ 50,000
---------
Total.................................................... $ 521,250
=========
Item 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Maryland REIT Law permits a Maryland real estate investment trust
to include in its Declaration of Trust a provision limiting the liability of its
trustees and officers to the trust and its shareholders for money damages except
for liability resulting from (a) actual receipt of an improper benefit or profit
in money, property or services or (b) active and deliberate dishonesty
established by a final judgment as being material to the cause of action. The
Declaration of Trust of Brandywine Realty Trust (the "Company") contains such a
provision which eliminates such liability to the maximum extent permitted by the
Maryland REIT Law.
The Company's Bylaws require it to indemnify, without a preliminary
determination of the ultimate entitlement to indemnification, (a) any present or
former Trustee, officer or shareholder who has been successful, on the merits or
otherwise, in the defense of a proceeding to which he was made a party by reason
of such status, against reasonable expenses incurred by him in connection with
the proceeding; (b) any present or former Trustee or officer against any claim
or liability to which he may become subject by reason of such status unless it
is established that (i) his act or omission was committed in bad faith or was
the result of active and deliberate dishonesty, (ii) he actually received an
improper personal benefit in money, property or services or (iii) in the case of
a criminal proceeding, he had reasonable cause to believe that his act or
omission was unlawful; and (c) each shareholder or former shareholder against
any claim or liability to which he may be subject by reason of such status as a
shareholder or former shareholder. However, under the MGCL, a Maryland
corporation may not indemnify for an adverse judgment in a suit by or in the
right of the corporation or for a judgment of liability on the basis that
personal benefit was improperly received, unless in either case a court orders
indemnification and then only for expenses. In addition, the Company's Bylaws
require it to pay or reimburse, in advance of final disposition of a proceeding,
reasonable expenses incurred by a present or former Trustee, officer or
shareholder made a party to a proceeding by reason of his status as a Trustee,
officer or shareholder provided that, in the case of a Trustee or officer, the
Company shall have received (i) a written affirmation by the Trustee or officer
of his good faith belief that he has met the applicable standard of conduct
necessary for indemnification by the Company as authorized by the Bylaws and
(ii) a written undertaking by or on his behalf to repay the amount paid or
reimbursed by the Company if it shall ultimately be determined that the
applicable standard of conduct was not met. The Company's Bylaws also (i) permit
the Company, with the approval of its Trustees, to provide indemnification and
payment or reimbursement of expenses to a present or former Trustee, officer or
shareholder who served a predecessor of the Company in such capacity, and to any
employee or agent of the Company or a predecessor of the Company, (ii) provide
that any indemnification or payment or reimbursement of the expenses permitted
by Bylaws shall be furnished in accordance with the procedures provided for
indemnification and payment or reimbursement of expenses under Section 2-418 of
the Maryland General Corporation Law ("MGCL") for directors of Maryland
corporations and (iii) permit the Company to provide such other and further
indemnification or payment or reimbursement of expenses as may be permitted by
the MGCL for directors of Maryland corporations.
The limited partnership agreement of Brandywine Operating Partnership,
L.P. (the "Operating Partnership") also provides for indemnification by the
Operating Partnership of the Company and its Trustees and officers for any
costs, expenses or liabilities incurred by them by reason of any act performed
by them for or on behalf of the Operating
II-1
<PAGE>
Partnership or the Company; provided that such person's conduct was taken in
good faith and in the belief that such conduct was in the best interests of the
Operating Partnership and that such person was not guilty of fraud, willful
misconduct or gross negligence.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to Trustees and
officers of the Trust pursuant to the foregoing provisions or otherwise, the
Company has been advised that, although the validity and scope of the governing
statute has not been tested in court, in the opinion of the Commission, such
indemnification is against public policy as expressed in Securities Act and is,
therefore, unenforceable. In addition, indemnification may be limited by state
securities laws.
ITEM 16. EXHIBITS
*1.0 - Form of Underwriting Agreement.
3.1 - Amended and Restated Declaration of Trust of the
Company (Incorporated by reference to Exhibit 3.1 to
the Company's Current Report on Form 8-K dated June
9, 1997)
3.2 - Articles of Amendment to Declaration of Trust of the
Company (Incorporated by reference to Exhibit 3.1 to
the Company's Current Report on Form 8-K dated
September 10, 1997)
3.3 - Articles of Amendment to Declaration of Trust of the
Company (No. 2)(Incorporated by reference to Exhibit
3.1 to the Company's Current Report on Form 8-K dated
June 3, 1998)
3.4 - Amended and Restated Bylaws of the Company
(Incorporated by reference to Exhibit 3.2 to the
Company's Annual Report on Form 10-K for the year
ended December 31, 1996)
3.5 - Amended and Restated Agreement of Limited Partnership
of the Operating Partnership (Incorporated by
reference to Exhibit 10.1 to the Company's Current
Report on Form 8-K dated December 17, 1997)
3.6 - First Amendment to Amended and Restated Agreement of
Limited Partnership of the Operating Partnership
(Incorporated by reference to Exhibit 10.12 to the
Company's Current Report on Form 8-K dated December
17, 1997)
3.7 - Second Amendment to Amended and Restated Agreement of
Limited Partnership of the Operating Partnership
(Incorporated by reference to Exhibit 10.3 to the
Company's Current Report on Form 8-K dated April 13,
1998)
3.8 - Third Amendment to Amended and Restated Agreement of
Limited Partnership of the Operating Partnership
(Incorporated by reference to Exhibit 10.4 to the
Company's Current Report on Form 8-K dated May 14,
1998)
*4.1 - Form of Common Share Warrant Agreement
*4.2 - Form of Deposit Agreement
4.3 - Form of Indenture for Senior Debt Securities
4.4 - Form of Senior Debt Security (included in Exhibit
4.3)
4.5 - Form of Indenture for Subordinated Debt Security
4.6 - Form of Subordinated Debt Security (included in
Exhibit 4.5)
**5.1 - Opinion of Pepper Hamilton LLP regarding the validity
of securities being registered
II-2
<PAGE>
**5.2 - Opinion of Ballard Spahr Andrews & Ingersoll, LLP
regarding the validity of securities being registered
**8.1 - Opinion of Arthur Andersen LLP regarding tax matters
**12.1 - Calculation of Ratios of Earnings to Combined Fixed
Charges and Preferred Share Distributions
23.1 - Consent of Arthur Andersen LLP
23.2 - Consent of Zelenkofske, Axelrod & Co., Ltd.
23.3 - Consent of Pepper Hamilton LLP (contained in Exhibit
5.1)
23.4 - Consent of Ballard Spahr Andrews & Ingersoll, LLP
(contained in Exhibit 5.2)
23.5 - Consent of Arthur Andersen LLP regarding opinion as
to tax matters (contained in Exhibit 8.1)
**24 - Power of Attorney (filed as part of the signature
page to the Registration Statement)
- --------------------
* To be filed by amendment or incorporated by reference in connection with
the offering of the Securities.
** Previously filed as an exhibit to this Registration Statement.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrants pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the Securities offered herein, and the
offering of such Securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-3
<PAGE>
(3) To remove from registration by means of a post-effective amendment
any of the Securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrants hereby further undertake that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrants' annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the Securities offered herein, and the offering of such
Securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrants pursuant to the provisions described under Item 15 of this
registration statement, or otherwise (other than insurance), the Registrants
have been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in such Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrants of expenses incurred
or paid by a director, officer or controlling person of the Registrants in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the Securities being
registered, the Registrants will, unless in the opinion of their counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by them is
against public policy as expressed in such Act and will be governed by the final
adjudication of such issue.
(d) The Registrants hereby undertake to file an application for the purpose
of determining the eligibility of any trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrants certify that they have reasonable grounds to believe that they meet
all the requirements for filing on Form S-3 and have duly caused this
Registration Statement to be signed on their behalf by the undersigned,
thereunto duly authorized, in the City of Philadelphia, Commonwealth of
Pennsylvania, on July 16, 1998.
BRANDYWINE REALTY TRUST
By: /s/ Gerard H. Sweeney
------------------------
Gerard H. Sweeney
President and Chief Executive Officer
BRANDYWINE OPERATING PARTNERSHIP, L.P.
By: Brandywine Realty Trust, its general partner
By: /s/ Gerard H. Sweeney
--------------------------------------
Gerard H. Sweeney
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons on July
16, 1998, in the capacities indicated.
Signature Title
--------- -----
* Chairman of the Board of Trustees
- ---------------------------------
Anthony A. Nichols, Sr.
/s/ Gerard H. Sweeney President, Chief Executive Officer
- --------------------------------- and Trustee (Principal Executive
Gerard H. Sweeney Officer)
* Chief Financial Officer (Principal
- --------------------------------- Financial and Accounting Officer)
Mark S. Kripke
* Trustee
- ---------------------------------
Warren V. Musser
* Trustee
- ---------------------------------
Walter D'Alessio
* Trustee
- ---------------------------------
Charles P. Pizzi
* By: Attorney-in-fact pursuant to power of attorney filed as part of this
Registration Statement.
/s/ Gerard H. Sweeney
- ---------------------------------
Gerard H. Sweeney
II-5
<PAGE>
EXHIBIT INDEX
-------------
Exhibit Exhibit
Number Description
- ------- -----------
4.3 Form of Indenture for Senior Debt Security
4.4 Form of Senior Debt Security (included in
Exhibit 4.3)
4.5 Form of Indenture for Subordinated Debt
Security
4.6 Form of Subordinated Debt Security (included in
Exhibit 4.5)
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Zelenkofske, Axelrod & Co., Ltd.
<PAGE>
EXHIBIT 4.3
BRANDYWINE OPERATING PARTNERSHIP, L.P. and
BRANDYWINE REALTY TRUST
TO
[ ]
Trustee
-------------------
Indenture
Dated as of [ ,] 1998
-------------------
Senior Debt Securities
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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<S> <C>
RECITALS .........................................................................................................1
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.............................................1
SECTION 101. Definitions................................................................................1
SECTION 102. Compliance Certificates and Opinions.......................................................9
SECTION 103. Form of Documents Delivered to Trustee....................................................10
SECTION 104. Acts of Holders...........................................................................10
SECTION 105. Notices, etc..............................................................................11
SECTION 106. Notice to Holders: Waiver.................................................................12
SECTION 107. Counterparts; Effect of Headings and Table of Contents....................................13
SECTION 108. Successors and Assigns....................................................................13
SECTION 109. Severability Clause.......................................................................13
SECTION 110. Benefits of Indenture.....................................................................13
SECTION 111. Governing Law.............................................................................13
SECTION 112. Legal Holidays............................................................................13
SECTION 113. Immunity of Limited Partners, Shareholders, Trustees, Officers and Agents of the
Partnership and the Guarantor.............................................................13
SECTION 114. Conflict with Trust Indenture Act.........................................................13
ARTICLE TWO - SECURITIES FORMS...................................................................................14
SECTION 201. Forms of Securities.......................................................................14
SECTION 202. Form of Trustee's Certificate of Authentication...........................................14
SECTION 203. Securities Issuable in Global Form........................................................14
ARTICLE THREE - THE SECURITIES...................................................................................15
SECTION 301. Amount Unlimited; Issuable in Series......................................................15
SECTION 302. Denominations.............................................................................18
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..............................................................................27
SECTION 310. Computation of Interest...................................................................27
ARTICLE FOUR - SATISFACTION AND DISCHARGE........................................................................27
SECTION 401. Satisfaction and Discharge of Indenture...................................................27
SECTION 402. Application of Trust Funds.................................................................29
ARTICLE FIVE - REMEDIES..........................................................................................29
SECTION 501. Events of Default..........................................................................29
SECTION 502. Acceleration of Maturity; Rescission and Annulment.........................................30
</TABLE>
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<TABLE>
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<S> <C>
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee............................31
SECTION 504. Trustee May File Proofs of Claim...........................................................32
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons.....................33
SECTION 506. Application of Money Collected.............................................................33
SECTION 507. Limitation on Suits........................................................................33
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium or Make-Whole
Amount, if any, and Interest........................................................34
SECTION 509. Restoration of Rights and Remedies.........................................................34
SECTION 510. Rights and Remedies Cumulative.............................................................34
SECTION 511. Delay or Omission Not Waiver...............................................................34
SECTION 512. Control by Holders of Securities...........................................................34
SECTION 513. Waiver of Past Defaults....................................................................34
SECTION 514. Waiver of Usury, Stay or Extension Laws....................................................35
SECTION 515. Undertaking for Costs......................................................................35
ARTICLE SIX - THE TRUSTEE........................................................................................35
SECTION 601. Notice of Defaults.........................................................................35
SECTION 602. Certain Rights of Trustee..................................................................35
SECTION 603. Not Responsible for Recitals or Issuance of Securities.....................................37
SECTION 604. May Hold Securities........................................................................37
SECTION 605. Money Held in Trust........................................................................37
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests.............................38
SECTION 608. Resignation and Removal; Appointment of Successor..........................................38
SECTION 609. Acceptance of Appointment by Successor.....................................................39
SECTION 610. Merger, Conversion, Consolidation or Succession to Business................................40
SECTION 611. Appointment of Authenticating Agent........................................................40
SECTION 612. Certain Duties and Responsibilities of the Trustee.........................................41
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE, PARTNERSHIP AND GUARANTOR.................................42
SECTION 701. Disclosure of Names and Addresses of Holders...............................................42
SECTION 702. Reports by Trustee.........................................................................43
SECTION 703. Reports by Partnership and Guarantor.......................................................43
SECTION 704. Partnership to Furnish Trustee Names and Addresses of Holders..............................43
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE ................................................44
SECTION 801. Consolidations and Mergers of Partnership and Sales, Leases and Conveyances Permitted
Subject to Certain Conditions.......................................................44
SECTION 802. Rights and Duties of Successor Corporation.................................................44
SECTION 803. Officers' Certificate and Opinion of Counsel...............................................44
SECTION 804. Consolidations and Mergers of Guarantor and Sales, Leases and Conveyances Permitted
Subject to Certain Conditions..........................................................44
SECTION 805. Rights and Duties of Successor Corporation.................................................45
SECTION 806. Guarantor's Officers' Certificate and Opinion of Counsel...................................45
ARTICLE NINE - SUPPLEMENTAL INDENTURES...........................................................................45
SECTION 901. Supplemental Indentures Without Consent of Holders.........................................45
</TABLE>
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<S> <C>
SECTION 902. Supplemental Indentures with Consent of Holders............................................46
SECTION 903. Execution of Supplemental Indentures.......................................................47
SECTION 904. Effect of Supplemental Indentures..........................................................47
SECTION 905. Conformity with Trust Indenture Act........................................................47
SECTION 906. Reference in Securities to Supplemental Indentures.........................................47
ARTICLE TEN - COVENANTS..........................................................................................48
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, if any; and Interest..................48
SECTION 1002. Maintenance of Office or Agency...........................................................48
SECTION 1003. Money for Securities Payments to Be Held in Trust.........................................49
SECTION 1004. Existence.................................................................................50
SECTION 1005. Maintenance of Properties.................................................................50
SECTION 1006. Insurance.................................................................................50
SECTION 1007. Payment of Taxes and Other Claims.........................................................50
SECTION 1008. Statement as to Compliance................................................................51
SECTION 1009. Waiver of Certain Covenants...............................................................51
ARTICLE ELEVEN - REDEMPTION OF SECURITIES .......................................................................51
SECTION 1101. Applicability of Article..................................................................51
SECTION 1102. Election to Redeem; Notice to Trustee.....................................................51
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.........................................51
SECTION 1104. Notice of Redemption......................................................................52
SECTION 1105. Deposit of Redemption Price...............................................................53
SECTION 1106. Securities Payable on Redemption Date.....................................................53
SECTION 1107. Securities Redeemed in Part...............................................................53
ARTICLE TWELVE - SINKING FUNDS...................................................................................54
SECTION 1201. Applicability of Article..................................................................54
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.....................................54
SECTION 1203. Redemption of Securities for Sinking Fund.................................................54
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS ...........................................................55
SECTION 1301. Applicability of Article..................................................................55
SECTION 1302. Repayment of Securities...................................................................55
SECTION 1303. Exercise of Option........................................................................55
SECTION 1304. When Securities Presented for Repayment Become Due and Payable............................55
SECTION 1305. Securities Repaid in Part.................................................................56
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE ...........................................................56
SECTION 1401. Applicability of Article: Partnership's Option to Effect Defeasance or Covenant
Defeasance.............................................................................56
SECTION 1402. Defeasance and Discharge..................................................................56
SECTION 1403. Covenant Defeasance.......................................................................57
SECTION 1404. Conditions to Defeasance or Covenant Defeasance...........................................57
</TABLE>
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<TABLE>
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<S> <C>
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions........................................................................59
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES..............................................................59
SECTION 1501. Purposes for Which Meetings May Be Called.................................................59
SECTION 1502. Call, Notice and Place of Meetings........................................................60
SECTION 1503. Persons Entitled to Vote at Meetings......................................................60
SECTION 1504. Quorum; Action............................................................................60
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.......................61
SECTION 1506. Counting Votes and Recording Action of Meetings...........................................61
ARTICLE SIXTEEN - GUARANTEE......................................................................................62
SECTION 1601. Guarantee.................................................................................62
EXHIBIT A FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR SECURITY............................................1
EXHIBIT B FORMS OF CERTIFICATION..........................................................................1
</TABLE>
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<PAGE>
BRANDYWINE OPERATING PARTNERSHIP, L.P. and
BRANDYWINE REALTY TRUST
Reconciliation and tie between Trust Indenture Act of 1939
(the "Trust Indenture Act" or "TIA") and Indenture, dated as of [ ,] 1998.
Trust Indenture
Act Section Indenture Section
- ----------- -----------------
310(a)(1) . . . . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . . . . 607, 608
312(c) . . . . . . . . . . . . . . . . . . 701
313(a) . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . 702
314(a) . . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . . 1008
(c)(1) . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . . 102
315(b) . . . . . . . . . . . . . . . . . . 601
316(a) (last sentence) . . . . . . . . . . 502, 512
(a)(1)(A) . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . . 508
317(a)(1) . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . 504
318(a) . . . . . . . . . . . . . . . . . . 111
(c) . . . . . . . . . . . . . . . . . . 111
- ----------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Attention should also be directed to TIA Section 318(c), which provides
that the provisions of TIA Sections 310 to and including 317 of the Trust
Indenture Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
-v-
<PAGE>
INDENTURE, dated as of [ ,] 1998, between Brandywine Operating
Partnership, L.P., a limited partnership organized under the laws of the State
of Delaware (hereinafter called the "Partnership"), having its principal office
at 16 Campus Boulevard, Newtown Square, PA 19073, Brandywine Realty Trust, a
real estate investment trust organized under the laws of the State of Maryland
(hereinafter called the "Company" or the "Guarantor"), having its principal
office at 16 Campus Boulevard, Newtown Square, PA 19073, and
[___________________], a banking association organized under the laws of the
_____________________________ as Trustee hereunder (hereinafter called the
"Trustee"), having a Corporate Trust Office at
________________________________].
RECITALS
The Company, as general partner of the Partnership, deems it
necessary to cause the Partnership to issue from time to time for its lawful
purposes senior debt securities (hereinafter called the "Securities") evidencing
its unsecured and senior indebtedness, and has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the
Securities, to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the
Partnership, in accordance with its terms, have been done.
For value received, the execution and delivery by the Company
of this Indenture to provide for the issuance of the Guarantee provided for
herein have been duly authorized. In addition, 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 (the "Trust Indenture Act" or "TIA"), that are
deemed to be incorporated into this Indenture and shall, to the extent
applicable, 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 thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or 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 TIA, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash
transaction" and "self-liquidating paper," as used in TIA
Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
and
(4) the words "herein," "hereof "and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
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"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 611 hereof to act on behalf of the Trustee to
authenticate Securities.
"Authorized Newspaper" means a newspaper, printed in the
English language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community of each
such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or in
different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to
Section 201 which is payable to bearer.
"Board of Trustees" means the board of trustees of the
Company, in its capacity as general partner of the Partnership, or any committee
of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Trustees, on behalf of the Company in its capacity as general
partner of the Partnership, and to be in full force and effect on the date such
certification is delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
issued pursuant to Section 301, any day, other than a Saturday or Sunday, that
is not a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"Capital Stock" of any Person means any and all shares,
interests, participations, rights to purchase, warrants, options or other
equivalents (however designated) of corporate stock or other equity of such
Person.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres,
S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company, as general partner
of the Partnership, by its Chairman of the Board, the President or a
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Vice President, and by its Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Securities or Guaranteed Securities, as
the case may be, to be redeemed that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of such
Securities or Guaranteed Securities, as the case may be. "Independent Investment
Banker" means one of the Reference Treasury Dealers appointed by the Trustee
after consultation with the Partnership.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third business day preceding such a redemption date, as set forth in the
daily statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, the average of
all Reference Treasury Dealer Quotations for such redemption date.
"Consolidated Net Assets" means as of any particular time the
aggregate amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom all current liabilities except for
(a) notes and loans payable, (b) current maturities of long-term debt and (c)
current maturities of obligations under capital leases, all as set forth on the
most recent consolidated balance sheet of the Partnership and its consolidated
Subsidiaries and computed in accordance with generally accepted accounting
principles and practices as in effect on [_____________] [the date of the this
Indenture].
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit (or composite currency) other than the ECU for the purposes for which it
was established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at
[______________________________].
"corporation" includes corporations, associations, companies,
partnerships, business trusts and real estate investment trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning specified in Section 501.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, or its successor as operator of the Euroclear System.
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"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU issued by the
government of one or more countries other than the United States of America or
by any recognized confederation or association of such governments.
"GAAP" means, except as otherwise provided herein, generally
accepted accounting principles, as in effect from time to time, as used in the
United States applied on a consistent basis.
"Global Security" means a Security evidencing all or a part of
a series of Securities issued to and registered in the name of the depository
for such series, or its nominee, in accordance with Section 305, and bearing the
legend prescribed in Section 203.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Guaranty" means the unconditional guarantee of the payment of
the principal of or any premium or interest on the Guaranteed Securities by the
Guarantor, as more fully set forth in Article Sixteen.
"Guaranteed Securities" means a series of Securities made
subject to a Guarantee (as set forth in Article Sixteen) pursuant to Section
301.
"Guarantor" means the Person named as the "Guarantor" 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
"Guarantor" shall mean such successor Person.
"Guarantor's Board of Trustees" means the board of trustees
(or directors, as the case may be) of the Guarantor or any committee of that
board duly authorized to act generally or in any particular respect for the
Guarantor hereunder.
"Guarantor's Trustee Resolution" means a copy of one or more
resolutions, certified by the Secretary or an Assistant Secretary of the
Guarantor to have been duly adopted by the Guarantor's Board of Trustees and to
be in full force and effect on the date such certification is delivered to the
Trustee.
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"Guarantor's Officers' Certificate" means a certificate signed
by the Chairman of the Board, the President or a Vice President, and the
Secretary or an Assistant Secretary, of the Guarantor, that complies with the
requirements of Section 314(e) of the Trust Indenture Act and is delivered to
the Trustee.
"Guarantor Request" and "Guarantor Order" means, respectively,
a written request or order signed in the name of the Guarantor by the Chairman
of the Board, the President or the Vice President, and the Secretary or an
Assistant Secretary, of the Guarantor, and delivered to the Trustee.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
"Indebtedness" means, with respect to any Person, without
duplication, (i) any Obligation of such Person relating to any indebtedness of
such Person (A) for borrowed money (whether or not the recourse of the lender is
to the whole of the assets, of such person or only to a portion thereof), (B)
evidenced by notes, debentures or similar instruments (including purchase money
obligations) given in connection with the acquisition of any property or assets
(other than trade accounts payable for inventory or similar property acquired in
the ordinary course of business), including securities, for the payment of which
such Person is liable, directly or indirectly, or the payment of which is
secured by a lien, charge or encumbrance on property or assets of such Person,
(C) for goods, materials or services purchased in the ordinary course of
business (other than trade accounts payable arising in the ordinary course of
business), (D) with respect to letters of credit or bankers acceptances issued
for the account of such Person or performance, surety or similar bonds, (E) for
the payment of money relating to a Capitalized Lease Obligation or (F) under
interest rate swaps, caps or similar agreements and foreign exchange contracts,
currency swaps or similar agreements; (ii) any liability of others of the kind
described in the preceding clause (i), which such Person has guaranteed or which
is otherwise its legal liability; and (iii) any and all deferrals, renewals,
extensions and refunding of, or amendments, modifications or supplements to, any
liability of the kind described in any of the preceding clauses (i) or (ii).
"Indenture" means this instrument as originally executed or as
it may be supplemented or amended from time to time by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may be supplemented or
amended from time to time by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
the or those particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"Interest," when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, shall
mean interest payable after Maturity.
"Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
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"Make-Whole Amount," when used with respect to any Security,
means the amount, if any, in addition to principal which is required by a
Security, under the terms and conditions specified therein or as otherwise
specified as contemplated by Section 301, to be paid by the Partnership to the
Holder thereof in connection with any optional redemption or accelerated payment
of such Security.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Obligation" of any Person with respect to any specified
Indebtedness means any obligation of such Person to pay principal, premium,
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to such Person, whether or not a claim
for such post-petition interest is allowed in such Proceeding), penalties,
reimbursement or indemnification amounts, fees, expenses or other amounts
relating to such Indebtedness.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President and by the Secretary or
an Assistant Secretary of the Company, as general partner of the Partnership,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Partnership or who may be an employee of or other counsel
for the Partnership or the Guarantor, as the case may be, and who shall be
satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding," when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose
payment or redemption (including repayment at the option of
the Holder) money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Partnership or the Guarantor) in trust or set aside and
segregated in trust by the Partnership or the Guarantor (if
the Partnership shall act as its own, or authorize the
Guarantor to act as, Paying Agent) for the Holders of such
Securities and any coupons appertaining thereto; provided,
however, that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee
has been made;
(iii) Securities, except to the extent provided in
Sections 1402 and 1403, with respect to which the Partnership
or the Guarantor has effected defeasance and/or covenant
defeasance as provided in Article Fourteen; 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 Partnership;
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provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Partnership, of the principal amount (or,
in the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv) Securities owned
by the Partnership, the Guarantor or any other obligor upon the Securities or
any Affiliate of the Partnership, the Guarantor or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities owned as provided in clause (iv) above 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 Partnership, the Guarantor or
any other obligor upon the Securities or any Affiliate of the Partnership, the
Guarantor or such other obligor. In case of a dispute as to such right, the
advice of counsel shall be full protection in respect of any decision made by
the Trustee in accordance with such advice.
"Paying Agent" means any Person authorized by the Partnership
to pay the principal of (and premium or Make-Whole Amount, if any) or interest
on any Securities or coupons on behalf of the Partnership.
"Person" means any individual, corporation, partnership, 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 or within any series, means the place or places where the principal of (and
premium or Make-Whole Amount, if any) and interest on such Securities are
payable as specified as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redemption Date," when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Treasury Dealer" means each of [_________________],
and their respective successors; provided, however, that if any of the foregoing
shall cease to be a primary U.S. Government securities
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dealer in New York City (a "Primary Treasury Dealer"), the Partnership shall
substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third business day preceding such redemption date.
"Registered Security" shall mean any Security which is
registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment by
or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid by or pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee,
means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any 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 such officer's knowledge and familiarity with the
particular subject.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated under the Securities Act of 1933) of the Partnership.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date fixed
by the Partnership pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Partnership or by
one or more other Subsidiaries of the Partnership. For the purposes of
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this definition, "voting stock" means stock having voting power for the election
of directors, whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
"Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States Federal income
taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Partnership or the Guarantor to the Trustee to
take any action under any provision of this Indenture, the Partnership or the
Guarantor, as the case may be, shall furnish to the Trustee an Officers'
Certificate or a Guarantor's Officers' Certificate, as the case may be, stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1008) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such condition or covenant has been complied
with; and
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(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied
with.
SECTION 103. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion 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, in
its own capacity or as general partner of the Partnership, may be based, insofar
as it relates to legal matters, upon an Opinion of Counsel, or a certificate or
representations by counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the opinion, certificate or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such Opinion of Counsel or certificate or representations may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the Company, in its own
capacity or as general partner of the Partnership, stating that the information
as to such factual matters is in the possession of the Company, in its own
capacity or as general partner of the Partnership, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. If Securities of
a series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, 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 Partnership the Guarantor. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such instrument
or instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee, the Partnership and the Guarantor and any
agent of the Trustee, the Partnership or the Guarantor, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take 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
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other reasonable manner which the Trustee deems
sufficient.
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(c) The ownership of Registered Securities shall be
proved by the Security Register. As to any matter relating to beneficial
ownership interests in any Global Security, the appropriate depository's records
shall be dispositive for purposes of this Indenture.
(d) The ownership of Bearer Securities may be proved
by the production of such Bearer Securities or by a certificate executed, as
depository, by any trust company, bank, banker or other depository, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depository, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee, the Partnership and the Guarantor may assume that
such ownership of any Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some other
Person, or (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding. The ownership of
Bearer Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Partnership or the Guarantor shall solicit
from the Holders of Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Partnership or the
Guarantor, as the case may be, may, at its option, in or pursuant to a Board
Resolution or a Guarantor's Board Resolution, as the case may be, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but
neither the Partnership nor the Guarantor shall have any obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(f) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent, the
Partnership or the Guarantor in reliance thereon, whether or not notation of
such action is made upon such Security.
SECTION 105. Notices, etc., to Trustee, Partnership and
Guarantor. 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, the Partnership or the
Guarantor shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with the
Trustee at [__________________________]; or
(2) the Partnership or the Guarantor 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
Partnership or the Guarantor, as the case may be, addressed to
it at the address of its principal office specified in the
first paragraph of this
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Indenture or at any other address previously furnished in
writing to the Trustee by the Partnership or the Guarantor, as
the case may be, Attention: Chief Financial Officer (with a
copy to the General Counsel), or
(3) either the Trustee or the Partnership or the
Guarantor, by the other party, shall be sufficient for every
purpose hereunder if given by facsimile transmission, receipt
confirmed by telephone followed by an original copy delivered
by guaranteed overnight courier; if to the Trustee at
facsimile number [_________________]; and if to the
Partnership or the Guarantor at facsimile number (610)
323-5622.
SECTION 106. Notice to Holders: Waiver. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Partnership or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, if any, and
not earlier than the earliest date, if any, prescribed for the giving of such
notice. In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered Securities
as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities on a Business Day, such publication to be not later than the
latest date, if any, and not earlier than the earliest date, if any, prescribed
for the giving of such notice. Any such notice shall be deemed to have been
given on the date of such publication or, if published more than once, on the
date of the first such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
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SECTION 107. Counterparts; Effect of Headings and Table of
Contents. This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and
agreements in this Indenture by the Partnership shall bind its successors and
assigns, whether so expressed or not.
SECTION 109. Severability Clause. In case any provision in
this Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture
or in the Securities or coupons, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law. This Indenture and the Securities
and coupons shall be governed by and construed in accordance with the law of the
State of New York. This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security or the last date on which a Holder has the
right to exchange a Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or principal (and premium or Make-Whole Amount, if any) or exchange of
such security need not be made at such Place of Payment on such date, but
(except as otherwise provided in the supplemental indenture with respect to such
Security) may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date or sinking fund payment date, or at the Stated
Maturity or Maturity, or on such last day for exchange, provided that no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be.
SECTION 113. Immunity of Limited Partners, Shareholders,
Trustees, Officers and Agents of the Partnership and the Guarantor. No recourse
under or upon any obligation, covenant or agreement contained in this Indenture,
or in any Security, or because of any indebtedness evidenced thereby, shall be
had against any past, present or future limited partner, shareholder, employee,
officer, director or trustee, as such, of the Partnership, the Guarantor (if the
Securities are Guaranteed Securities), or of any successor, either directly or
through the Partnership, the Guarantor (if the Securities are Guarateed
Securities), or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Securities by the Holders and as part of the
consideration for the issue of the Securities.
SECTION 114. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
which is required or deemed to be included in this Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control. If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
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ARTICLE TWO - SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities,
if any, of each series and the Bearer Securities, if any, of each series and
related coupons shall be substantially in the form of Exhibit A hereto or in
such other form as shall be established in one or more indentures supplemental
hereto or approved from time to time by or pursuant to a Board Resolution in
accordance with Section 301, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Partenrship may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or mechanically reproduced on
safety paper or may be produced in any other manner, all as determined by the
officers executing such Securities or coupons, as evidenced by their execution
of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[___________________]
as Trustee
Dated: _____________________ By:___________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities
of or within a series are issuable in the form of one or more Global Securities,
then, notwithstanding clause (8) of Section 301 and the provisions of Section
302, any such Global Security or Securities may provide that it or they shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of any Global Security to
reflect the amount, or any increase or decrease in the amount, or changes in the
rights of Holders thereof, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner or 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 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Global
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 Global Security shall be in writing but need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Global Security if such Security was never
issued and sold by the Partnership and the Partnership delivers to the
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Trustee the Global Security together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium or Make-Whole Amount, if any, and interest on any Global Security in
permanent global form shall be made to the registered Holder thereof.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Partnership, the Trustee and any agent
of the Partnership and the Trustee shall treat as the Holder of such principal
amount of Outstanding Securities represented by a permanent Global Security (i)
in the case of a permanent Global Security in registered form, the Holder of
such permanent Global Security in registered form, or (ii) in the case of a
permanent Global Security in bearer form, Euroclear or CEDEL.
Any Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
"This Security is a Global Security within the meaning set
forth in the Indenture hereinafter referred to and is
registered in the name of a Depository or a nominee of a
Depository. This Security is exchangeable for Securities
registered in the name of a person other than the Depository
or its nominee only in the limited circumstances described in
the Indenture, and may not be transferred except as a whole by
the Depository to a nominee of the Depository or by a nominee
of the Depository to the Depository or another nominee of the
Depository or by the Depository or its nominee to a successor
Depository or its nominee."
ARTICLE THREE - THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set forth
in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) The title of the Securities of the series (which
shall distinguish the Securities of such series from all other
series of Securities);
(2) Any limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange or, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) The price (expressed as a percentage of the
principal amount thereof) at which such Securities will be
issued and, if other than the principal amount thereof, the
portion of the principal amount thereof payable upon
declaration of acceleration of the maturity thereof;
(4) The date or dates, or the method for determining
such date or dates, on which the principal of such Securities
will be payable;
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(5) The rate or rates (which may be fixed or
variable), or the method by which such rate or rates shall be
determined, at which such Securities will bear interest, if
any;
(6) The date or dates, or the method for determining
such date or dates, from which any such interest will accrue,
the dates on which any such interest will be payable, the
record dates for such interest payment dates, or the method by
which such dates shall be determined, the persons to whom such
interest shall be payable, and the basis upon which interest
shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(7) The place or places where the principal of (and
premium or Make-Whole Amount, if any) and interest, if any, on
such Securities will be payable, where such Securities may be
surrendered for registration of transfer or exchange and where
notices or demands to or upon the Partnership in respect of
such Securities and this Indenture may be served;
(8) The period or periods, if any, within which, the
price or prices at which and the other terms and conditions
upon which such Securities may, pursuant to any optional or
mandatory redemption provisions, be redeemed, as a whole or in
part, at the option of the Partnership;
(9) The obligation, if any, of the Partnership to
redeem, repay or purchase such Securities pursuant to any
sinking fund or analogous provision or at the option of a
holder thereof, and the period or periods within which, the
price or prices at which and the other terms and conditions
upon which such Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such obligation;
(10) If other than Dollars, the currency or
currencies in which such Securities are denominated and
payable, which may be a foreign currency or units of two or
more foreign currencies or a composite currency or currencies,
the manner of determining the equivalent thereof in Dollars
for purposes of the definition of "Outstanding" in Section
101, and the terms and conditions relating thereto;
(11) Whether the amount of payments of principal of
(and premium or Make-Whole Amount, if any, including any
amount due upon redemption, if any) or interest, if any, on
such Securities may be determined with reference to an index,
formula or other method (which index, formula or method may,
but need not be, based on the yield on or trading price of
other securities, including United States Treasury securities
or on a currency, currencies, currency unit or units, or
composite currency or currencies) and the manner in which such
amounts shall be determined;
(12) Whether the principal of (and premium or
Make-Whole Amount, if any) or interest on the Securities of
the series are to be payable, at the election of the
Partnership or a holder thereof, in a currency or currencies,
currency unit or units or composite currency or currencies
other than that in which such Securities are denominated or
stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be
made, and the time and manner of, and identity of the exchange
rate agent with responsibility for, determining the exchange
rate between the currency or currencies, currency unit or
units or composite currency or currencies in which such
Securities are denominated or stated to be payable and the
currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are to be so
payable;
(13) Provisions, if any, granting special rights to
the holders of Securities of the series upon the occurrence of
such events as may be specified;
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(14) Any deletions from, modifications of or
additions to the Events of Default or covenants of the
Partnership with respect to Securities of the series, whether
or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein;
(15) Whether and under what circumstances the
Partnership will pay any additional amounts on such Securities
in respect of any tax, assessment or governmental charge and,
if so, whether the Partnership will have the option to redeem
such Securities in lieu of making such payment;
(16) 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 (if
permitted by applicable laws and regulations), whether any
Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series
are to be issuable in permanent global form with or without
coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests
for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the
manner provided in the Indenture, and, if Registered
Securities of the series are to be issuable as a Global
Security, the identity of the depository for such series;
(17) 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;
(18) The Person to whom any interest on any
Registered Security of the series shall be payable, if other
than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining
thereto as they severally mature, and the extent to which, or
the manner in which, any interest payable on a temporary
Global Security on an Interest Payment Date will be paid if
other than in the manner provided herein;
(19) If the Securities of such series are to be
Guaranteed Securities;
(20) The applicability, if any, of the defeasance and
covenant defeasance provisions of Article Fourteen hereof to
the Securities of the series;
(21) If the Securities of such series are to be
issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security of such series) only
upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions; and
(22) Any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued
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at the same time and, unless otherwise provided, a series may be reopened,
without the consent of the Holders, for issuances of additional Securities of
such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy of
an appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company, as general partner of the Partnership,
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the Securities of such series.
SECTION 302. Denominations. The Securities of each series
shall be issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions with respect to the Securities of any series,
the Securities of such series, other than Global Securities (which may be of any
denomination), shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf
of the Company, as general partner of the Partnership, by its Chairman of the
Board, its President or one of its Vice Presidents, under its trust seal
reproduced thereon, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities and
coupons may be manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company, as general partner of the Partnership, shall bind the Partnership,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Partnership may deliver Securities of any
series, together with any coupon appertaining thereto, executed by the
Partnership to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that, in connection with its original issuance,
no Bearer Security shall be mailed or otherwise delivered to any location in the
United States; and provided further that, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, a Bearer Security
may be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished a certificate to
Euroclear or CEDEL, as the case may be, in the form set forth in Exhibit B-1 to
this Indenture or such other certificate as may be specified with respect to any
series of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary Global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent Global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and canceled.
If all 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 or formula, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall be
fully protected in relying upon,
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(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and
any coupons have been established in conformity with
the provisions of this Indenture;
(b) the terms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture; and
(c) such Securities, together with any
coupons appertaining thereto, when completed by
appropriate insertions and executed and delivered by
the Partnership to the Trustee for authentication in
accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this
Indenture and issued by the Partnership in the manner
and subject to any conditions specified in such
Opinion of Counsel, will constitute legal, valid and
legally binding obligations of the Partnership,
enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization and other similar laws of
general applicability relating to or affecting the
enforcement of creditors' rights generally and to
general equitable principles; and
(ii) an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating
to the issuance of the Securities have been complied with and
that, to the best of the knowledge of the signers of such
certificate, that no Event of Default with respect to any of
the Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Officers' Certificate
otherwise required pursuant to Section 301 or a Company Order, or an Opinion of
Counsel or an Officers' Certificate otherwise required pursuant to the preceding
paragraph at the time of issuance of each Security of such series, but such
order, opinion and certificates, with appropriate modifications to cover such
future issuances, shall be delivered at or before the time of issuance of the
first Security of such series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, 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
(including a Global Security) shall have been authenticated and delivered
hereunder but never issued and sold by the Partnership, and the Partnership
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 Partnership, 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.
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SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any
series, the Partnership may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Global Securities (which shall
be exchanged as otherwise provided herein or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Partnership 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 Partnership
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Partnership
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and provided
further that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
Section 303. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, the following provisions of this Section 304(b) shall govern the
exchange of temporary Securities other than through the facilities of The
Depository Trust Company. If any such temporary Security is issued in global
form, then such temporary Global Security shall, unless otherwise provided
therein, be delivered to the London office of a depository or common depository
(the "Common Depository"), for the benefit of Euroclear and CEDEL, for credit to
the respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
Global Security (the "Exchange Date"), the Partnership shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary Global Security, executed by the Partnership.
On or after the Exchange Date, such temporary Global Security shall be
surrendered by the Common Depository to the Trustee, as the Partnership's agent
for such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary Global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such temporary
Global Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary Global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, unless otherwise specified in such
temporary Global Security, upon such presentation by the Common Depository, such
temporary Global Security is accompanied by a certificate dated the Exchange
Date or a subsequent date and signed by Euroclear as to the portion of such
temporary Global Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by CEDEL as
to the portion of such temporary Global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in
such other form as may be established pursuant to Section 301; and provided
further that definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary Global Security only in compliance with the requirements
of Section 303.
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Unless otherwise specified in such temporary Global Security,
the interest of a beneficial owner of Securities of a series in a temporary
Global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit B-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary Global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary Global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary Global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit B-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit B-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary Global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary Global Security will be
made unless and until such interest in such temporary Global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Partnership.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Partnership shall cause to be kept at the Corporate Trust Office
of the Trustee or in any office or agency of the Partnership or the Guarantor in
a Place of Payment a register for each series of Securities (the registers
maintained in such office or in any such office or agency of the Partnership or
the Guarantor in a Place of Payment being herein sometimes referred to
collectively as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Partnership or the Guarantor shall provide
for the registration of Registered Securities and of transfers of Registered
Securities. The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee, at its Corporate Trust Office, is hereby initially appointed "Security
Registrar" for the purpose of registering Registered Securities and transfers of
Registered Securities on such Security Register as herein provided. In the event
that the Trustee shall cease to be Security Registrar, it shall have the right
to examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender
for registration of transfer of any Registered Security of any series at any
office or agency of the Partnership in a Place of Payment for that series, the
Partnership shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or
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transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, bearing a
number not contemporaneously outstanding, and containing identical terms and
provisions.
Subject to the provisions of this Section 305, at the option
of the Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Partnership shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officers' Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, any such permitted exchange
may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Partnership and the Guarantor (if such Securities are
Guaranteed Securities) 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 Partnership, the Guarantor (if such Securities are Guaranteed
Securities) and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Partnership shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent Global Security shall be
exchangeable only as provided in this paragraph. If the depository for any
permanent Global Security is The Depository Trust Company ("DTC"), then, unless
the terms of such Global Security expressly permit such Global Security to be
exchanged in whole or in part for definitive Securities, a Global Security may
be transferred, in whole but not in part, only to a nominee of DTC, or by a
nominee of DTC to DTC, or to a successor to DTC for such Global Security
selected or approved by the Partnership or to a nominee of such successor to
DTC. If at any time DTC notifies the Partnership that it is unwilling or unable
to continue as depository for the applicable Global Security or Securities or if
at any time DTC ceases to be a clearing agency registered under the Securities
Exchange Act of 1934 if so required by applicable law or regulation, the
Partnership shall appoint a successor depository with respect to such Global
Security or Securities. If (x) a successor depository for such Global Security
or Securities is not appointed by the Partnership within 90 days after the
Partnership receives such notice or
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becomes aware of such unwillingness, inability or ineligibility, (y) an Event of
Default has occurred and is continuing and the beneficial owners representing a
majority in principal amount of the applicable series of Securities represented
by such Global Security or Securities advise DTC to cease acting as depository
for such Global Security or Securities or (z) the Partnership, in its sole
discretion, determines at any time that all Outstanding Securities (but not less
than all) of any series issued or issuable in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities,
then the Partnership shall execute, and the Trustee shall authenticate and
deliver definitive Securities of like series, rank, tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of such Global Security or Securities. If any beneficial owner of an interest in
a permanent global Security is otherwise entitled to exchange such interest for
Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent Global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Partnership shall execute, and the Trustee shall authenticate and deliver
definitive Securities in aggregate principal amount equal to the principal
amount of such beneficial owner's interest in such permanent Global Security. On
or after the earliest date on which such interests may be so exchanged, such
permanent Global Security shall be surrendered for exchange by DTC or such other
depository as shall be specified in the Company Order with respect thereto to
the Trustee, as the Partnership's agent for such purpose; provided, however,
that no such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities to be redeemed and ending on
the relevant Redemption Date if the Security for which exchange is requested may
be among those selected for redemption; and provided further that no Bearer
Security delivered in exchange for a portion of a permanent Global Security
shall be mailed or otherwise delivered to any location in the United States. If
a Registered Security is issued in exchange for any portion of a permanent
Global Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and the opening of business at such office or agency on
the related proposed date for payment of Defaulted Interest, interest or
Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such permanent Global Security is payable
in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Partnership and the
Guarantor (if such Securities are Guaranteed Securities), evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required by
the Partnership or the Security Registrar) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Partnership and
the Security Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Partnership may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Partnership or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any Security if such
Security may be among those selected for redemption during a period beginning at
the opening of business 15 days before selection of the Securities to be
redeemed under Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if such Securities are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange
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any Registered Security so selected for redemption in whole or in part, except,
in the case of any Registered Security to be redeemed in part, the portion
thereof not to be redeemed, or (iii) to exchange any Bearer Security so selected
for redemption except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor, provided that such Registered
Security shall be simultaneously surrendered for redemption, or (iv) to issue,
register the transfer of or exchange any Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon appertaining to
it is surrendered to the Trustee or the Partnership, together with, in proper
cases, such security or indemnity as may be required by the Partnership or the
Trustee to save each of them or any agent of either of them harmless, the
Partnership shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Partnership, the Guarantor
(if the Securities are Guaranteed Securities) and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Partnership, the Guarantor (if the Securities are Guaranteed Securities) or
the Trustee that such Security or coupon has been acquired by a bona fide
purchaser, the Partnership shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Security
or in exchange for the Security to which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or stolen), a new
Security of the same series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Partnership in its discretion
may, instead of issuing a new Security, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen coupon appertains, pay such
Security or coupon; provided, however, that payment of principal of (and premium
or Make- Whole Amount, if any), and any interest on, Bearer Securities shall,
except as otherwise provided in Section 1002, be payable only at an office or
agency located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Partnership may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Partnership and the Guarantor (if such Security is a
Guaranteed Security), whether or not the destroyed, lost or stolen Security and
its coupons, if any, or the destroyed, lost or stolen coupon shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
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SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, interest on any Registered
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Partnership maintained for such purpose pursuant to Section 1002; provided,
however, that each installment of interest on any Registered Security may at the
Partnership's option be paid by (i) mailing a check for such interest, payable
to or upon the written order of the Person entitled thereto pursuant to Section
308, to the address of such Person as it appears on the Security Register or
(ii) transfer to an account maintained by the payee located inside the United
States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest may be made, in the
case of a Bearer Security, by transfer to an account maintained by the payee
with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the
case may be, with respect to that portion of such permanent global Security held
for its account by Cede & Co. or the Common Depository, as the case may be, for
the purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Partnership or the Guarantor (if such
Registered Security is a Guaranteed Security), at its election in each case, as
provided in clause (1) or (2) below:
(1) The Partnership or the Guarantor (if the
Registered Security is a Guaranteed Security) may elect to
make payment of any Defaulted Interest to the Persons in whose
names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Partnership or the Guarantor (if the Registered
Security is a Guaranteed Security), as the case may be, shall
notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of
such series and the date of the proposed payment (which shall
not be less than 20 days after such notice is received by the
Trustee), and at the same time the Partnership or the
Guarantor (if the Registered Security is a Guaranteed
Security), as the case may be, shall deposit with the Trustee
an amount of money in the currency or currencies, currency
unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such
series) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to
the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be
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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 Partnership or
the Guarantor (if the Registered Security is a Guaranteed
Security) of such Special Record Date and, in the name and at
the expense of the Partnership or the Guarantor, as the case
may be, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of
Registered Securities of such series at his address as it
appears in the Security Register not less than 10 days prior
to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Partnership,
cause a similar notice to be published at least once in an
Authorized Newspaper in each Place of Payment, but such
publications shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names
the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). In case a Bearer
Security of any series is surrendered at the office or agency
in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business
at such office or agency on any Special Record Date and before
the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted
Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder
of such coupon when due in accordance with the provisions of
this Indenture.
(2) The Partnership or the Guarantor (if the
Registered Security is a Guaranteed Security) may make payment
of any Defaulted Interest on the Registered Securities of any
series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the
Partnership or the Guarantor (if the Registered Security is a
Guaranteed Security), as the case may be, 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 Partnership or the
Guarantor (if such Registered Security is a Guaranteed Security), the Trustee
and any agent of the Partnership or the Guarantor (if such Registered Security
is a Guaranteed Security) or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium or Make-Whole Amount, if any),
and (subject to Sections 305 and 307) interest on, such Registered Security and
for all other purposes whatsoever, whether or not such Registered Security be
overdue, and neither the Partnership, the Guarantor (if such Registered Security
is a Guaranteed Security), the Trustee nor any agent of the Partnership, the
Guarantor (if such Registered Security is a Guaranteed Security) or the Trustee
shall be affected by notice to the contrary. All such payments so made to any
such Person, or upon such Person's order, shall be valid, and, to the extent of
the sum or sums so paid, effectual to satisfy and discharge the liability for
money payable upon any such Security.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Partnership, the Guarantor (if the
Registered Security is a Guaranteed Security) the Trustee and any agent of the
Partnership, the Guarantor (if the Registered Security is a Guaranteed Security)
or the Trustee may treat the Holder of any Bearer Security and the Holder of any
coupon as the absolute owner of such Security or coupon for the
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purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and
neither the Partnership, the Guarantor (if the Registered Security is a
Guaranteed Security), the Trustee nor any agent of the Partnership, the
Guarantor (if the Registered Security is a Guaranteed Security) or the Trustee
shall be affected by notice to the contrary.
No Holder of any beneficial interest in any Global Security
held on its behalf by a depository shall have any rights under this Indenture
with respect to such Global Security and such depository shall be treated by the
Partnership, the Guarantor (if such Registered Security is a Guaranteed
Security), the Trustee, and any agent of the Partnership, the Guarantor (if such
Registered Security is a Guaranteed Security) or the Trustee as the owner of
such Global Security for all purposes whatsoever. None of the Partnership, the
Guarantor (if the Registered Security is a Guaranteed Security), the Trustee,
any Paying Agent or the Security Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Partnership, the Guarantor (if such
Registered Security is a Guaranteed Security), the Trustee, or any agent of the
Partnership, the Guarantor (if such Registered Security is a Guaranteed
Security) or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depository, as a Holder, with respect to
such Global Security or impair, as between such depository and owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such depository (or its
nominee) as Holder of such Global Security.
SECTION 309. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be promptly
canceled by it. The Partnership or the Guarantor (if the Registered Security is
a Guaranteed Security) may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Partnership or the Guarantor (if the Registered Security is a Guaranteed
Security) may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Partnership has not
issued and sold, and all Securities so delivered shall be promptly canceled by
the Trustee. If the Partnership or the Guarantor (if the Registered Security is
a Guaranteed Security) shall so acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. Canceled
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Partnership
or the Guarantor (if such Registered Security is a Guaranteed Security) unless
the Trustee is otherwise directed by a Company Order.
SECTION 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest on the Securities of each series shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
ARTICLE FOUR - SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Partnership Request or Guarantor Request (if the applicable
series of Securities is a series of Guaranteed Securities) cease to be of
further effect with respect to any series of Securities specified in such
Partnership Request or Guarantor Request, as the case may be (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for), and the Trustee, upon receipt of a
Company Order or a Guarantor Order, and at the expense of the Partnership or the
Guarantor, as the case may be, shall execute instruments in form and substance
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satisfactory to the Trustee and the Partnership or the Guarantor, as the case
may be, acknowledging satisfaction and discharge of this Indenture as to such
series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Partnership and thereafter repaid to the Partnership or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Partnership, 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
Partnership,
and the Partnership or the Guarantor (if the Securities of
such series are Guaranteed Securities), in the case of (i),
(ii) or (iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose an amount in the currency or currencies, currency unit
or units or composite currency or currencies in which the
Securities of such series are payable, sufficient to pay and
discharge the entire indebtedness on such Securities and such
coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium or Make-Whole Amount,
if any) and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Partnership or the Guarantor (if the
Securities of such series are Guaranteed Securities) has paid
or caused to be paid all other sums payable hereunder by the
Partnership; and
(3) the Partnership has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel and the
Guarantor has delivered to the Trustee a Guarantor's Officers'
Certificate (if the Securities of such series are Guaranteed
Securities), each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Partnership and the Guarantor to any Authenticating Agent
under Section 611 and, if money shall have been deposited with and held by the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
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SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Partnership acting as its own, or the Guarantor acting as, Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium or Make-Whole Amount, if any), and any interest for whose
payment such money has been deposited with or received by the Trustee, but such
money need not be segregated from other funds except to the extent required by
law.
ARTICLE FIVE - REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever
used herein with respect to any particular series of Securities, means any one
of the following events (whatever the reason for such Event of Default and
whether or not it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest on any
Security of that series or of any coupon appertaining thereto,
when such interest or coupon becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium or Make- Whole Amount, if any, on) any Security of
that series when it becomes due and payable at its Maturity;
or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of any Security of that
series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Partnership or the Guarantor (if
the Securities of such series are Guaranteed Securities) in
this Indenture with respect to any Security of that series
(other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Partnership and the
Guarantor (if the Securities of such series are Guaranteed
Securities) by the Trustee or to the Partnership, the
Guarantor (if the Securities of such series are Guaranteed
Securities) 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) a default under any bond, debenture, note or
other evidence of indebtedness for money borrowed (except
mortgage indebtedness) by the Partnership, the Guarantor (if
the Securities of such series are Guaranteed Securities) or
any of the Partnership's subsidiaries in an aggregate
principal amount in excess of $25,000,000 or under any
indenture or instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness for
money borrowed (except mortgage indebtedness) by the
Partnership, the Guarantor (if the Securities of such series
are Guaranteed Securities) or any of the Partnership's
subsidiaries in an aggregate principal amount in excess of
$25,000,000, whether such indebtedness exists on the date of
such Indenture or shall thereafter be created, which default
shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would
otherwise have become due and payable or such obligations
being accelerated, without such acceleration having been
rescinded or annulled, within a period of 10 days after there
shall have been given, by registered or certified mail, to the
Partnership or the Guarantor, as the case may be, by the
Trustee or to the Partnership or the Guarantor, as the case
may be, and the Trustee by the Holders of at least 10% in
principal amount of the outstanding Securities of that series
a written
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notice specifying such default and requiring the Partnership
or the Guarantor, as the case may be, to cause such
indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(6) the Partnership, the Guarantor (if the Securities
of such series are Guaranteed Securities) or any Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) consents to the appointment of a
Custodian of it or for all or substantially all of
its property, or
(D) makes a general assignment for the
benefit of its creditors; or
(7) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Partnership,
the Guarantor (if the Securities of such series are
Guaranteed Securities) or any Significant Subsidiary
in an involuntary case,
(B) appoints a Custodian of the Partnership,
the Guarantor (if the Securities of such series are
Guaranteed Securities) or any Significant Subsidiary
or for all or substantially all of any of other
property, or
(C) orders the liquidation of the
Partnership, the Guarantor (if the Securities of such
series are Guaranteed Securities) or any Significant
Subsidiary, and the order or decree remains unstayed
and in effect for 90 days; or
(8) any other Event of Default provided with respect
to Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S. Code
or any similar Federal or state law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
Securities of that Series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal as may be specified in the terms
thereof) of all the Securities of that series to be due and payable immediately,
by a notice in writing to the Partnership, the Guarantor (if the Securities of
such series are Guaranteed Securities) (if the Securities of such series are
Guaranteed Securities) (and to the Trustee if given by the Holders), and upon
any such declaration such principal or specified portion thereof shall become
immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by
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written notice to the Partnership, the Guarantor (if the Securities of such
series are Guaranteed Securities) and the Trustee, may rescind and annul such
declaration of acceleration and its consequences if:
(1) the Partnership or the Guarantor (if the
Securities of such series are Guaranteed Securities) has paid
or deposited with the Trustee a sum sufficient to pay in the
currency, currency unit or composite currency in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such
series):
(A) all overdue installments of interest on
all Outstanding Securities of that series and any
related coupons,
(B) the principal of (and premium or
Make-Whole Amount, if any, on) any Outstanding
Securities of that series which have become due
otherwise than by such declaration of acceleration
and interest thereon at the rate or rates borne by or
provided for in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue
installments of interest at the rate or rates borne
by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default with respect to Securities
of that series, other than the nonpayment of the principal of
(or premium or Make-Whole Amount, if any) or interest on
securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Partnership and the Guarantor (with respect to the
Securities of a series which are Guaranteed Securities) covenants that if:
(1) default is made in the payment of any installment
of interest on any Security of any series and any related
coupon when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal
of (or premium or Make-Whole Amount, if any, on) any Security
of any series at its Maturity,
then the Partnership or the Guarantor (if the Securities of such series are
Guaranteed Securities) will, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Securities of such series and coupons, the
whole amount then due and payable on such Securities and coupons for principal
(and premium or Make-Whole Amount, if any) and interest, with interest upon any
overdue principal (and premium or Make-Whole Amount, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon any overdue
installments of interest at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
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If the Partnership or the Guarantor (if the Securities of such
series are Guaranteed Securities) fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Partnership, the Guarantor (if the Securities of
such series are Guaranteed Securities) or any other obligor upon such Securities
of such series and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Partnership, the Guarantor (if
the Securities of such series are Guaranteed Securities) or any other obligor
upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Partnership, the Guarantor (if the Securities are
Guaranteed Securities) or any other obligor upon the Securities or the property
of the Partnership, the Guarantor (if the Securities are Guaranteed Securities)
or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Partnership or the
Guarantor (if the Securities are Guaranteed Securities) for the payment of
overdue principal, premium or Make-Whole Amount, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole
amount, or such lesser amount as may be provided for in the
Securities of such series, of principal (and premium or
Make-Whole Amount, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or
other property payable or deliverable on any such claims and
to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities, and it shall not be necessary to make any Holders
of the Securities parties to any such proceedings.
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SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium or Make-Whole
Amount, if any) or interest, upon presentation of the Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
and any predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities and coupons for principal (and
premium or Make-Whole Amount, if any) and interest, in respect
of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any
kind, according to the aggregate amounts due and payable on
such Securities and coupons for principal (and premium or
Make-Whole Amount, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to
the Partnership.
SECTION 507. Limitation on Suits. No Holder of any Security of
any series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with respect
to the Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall have
made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the
Trustee indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of the
Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any
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right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium or Make- Whole Amount, if any, and Interest. Notwithstanding
any other provision in this Indenture, the Holder of any Security or coupon
shall have the right which is absolute and unconditional to receive payment of
the principal of (and premium or Make-Whole Amount, if any) and (subject to
Sections 305 and 307) interest on such Security or payment of such coupon on the
respective due dates expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, the Partnership, the
Guarantor (if the Security is a Guaranteed Security), the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders of
not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be unduly prejudicial to
the Holders of Securities of such series not joining therein.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by
the Trustee and which is not inconsistent with such direction
by Holders.
SECTION 513. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series and any
related coupons waive any past default hereunder with respect to such series and
its consequences, except a default
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(1) in the payment of the principal of (or premium or
Make-Whole Amount, if any) or interest on any Security of such
series or any related coupons, or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended without
the consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The
Partnership and the Guarantor covenants, in each case, (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any usury, stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the
Partnership and the Guarantor each (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of 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 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 or Make-Whole
Amount, if any) or interest on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
ARTICLE SIX - THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided in
TIA Section 313(c), notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium
or Make-Whole Amount, if any) or interest on any Security of such series, or in
the payment of any sinking fund installment with respect to the Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of the Securities
and coupons of such series; and provided further that in the case of any default
or breach of the character specified in Section 501(4) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to the Securities
of such series.
SECTION 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction,
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consent, order, bond, debenture, note, coupon or other paper
or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Partnership
mentioned herein shall be sufficiently evidenced by a Company
Request or Company Order or of the Guarantor mentioned herein
shall be sufficiently evidenced by a Guarantor Request or
Guarantor Order (in each case, other than delivery of any
Security, together with any coupons appertaining thereto, to
the Trustee for authentication and delivery pursuant to
Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Trustees may be
sufficiently evidenced by a Board Resolution or of the
Guarantor's Board of Trustees may be sufficiently evidenced by
a Guarantor's 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 or, if such
matter pertains to the Guarantor, a Guarantor's Officers'
Certificate;
(4) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(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 related coupons pursuant to
this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to the
Trustee 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, coupon or other paper or document, unless
requested in writing so to do by the Holders of not less than
a majority in aggregate principal amount of the Outstanding
Securities of any series; provided that, if the payment within
a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such
examination shall be paid by the Holders or, if paid by the
Trustee, shall be repaid by the Holders upon demand. 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 Partnership and the
Guarantor (if Guaranteed Securities are outstanding), relevant
to the facts or matters that are the subject of its inquiry,
personally or by agent or attorney;
(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; and
(8) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and reasonably
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
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The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
Except during the continuance of an Event of Default, the
Trustee undertakes to perform 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.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Partnership or the Guarantor (if such Securities are
Guaranteed Securities), as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Partnership of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Partnership or the Guarantor, in its individual or any other capacity, may
become the owner or pledgee of Securities and coupons and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Partnership or the
Guarantor with the same rights it would have if it were not Trustee, Paying
Agent, Security Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Partnership
or the Guarantor.
SECTION 606. Compensation and Reimbursement. The Partnership
and the Guarantor agrees in each case:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor 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 reasonable expenses and disbursements of
its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against, any
loss, liability or expense 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 of defending itself against
any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(7) or Section
501(8), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
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As security for the performance of the obligations of the
Partnership and the Guarantor under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of (or
premium or Make-Whole Amount, if any) or interest on particular Securities or
any coupons. The provisions of this Section shall survive the termination of
this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests. There shall at all times be a Trustee hereunder which
shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article. Neither the
Partnership nor any Person directly or indirectly controlling, controlled by, or
under common control with the Partnership shall serve as Trustee.
SECTION 608. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Partnership and the Guarantor (if the Securities of such series are Guaranteed
Securities). If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Partnership and the Guarantor (if the Securities of such series are Guaranteed
Securities).
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request
therefor by the Partnership, the Guarantor (if the Securities
of such series are Guaranteed Securities) or by any Holder of
a Security who has been a bona fide Holder of a Security for
at least six months, or
(2) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after written request
therefor by the Partnership, the Guarantor (if the Securities
of such series are Guaranteed Securities) or by any Holder of
a Security who has been a bona fide Holder of a Security for
at least six months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Partnership or the Guarantor (if the Securities
of such series are Guaranteed Securities) by or pursuant to a Board Resolution
or a Guarantor Board Resolution, as the case may be, may remove the Trustee
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and appoint a successor Trustee with respect to all Securities, or (ii) subject
to TIA Section 315(e), any Holder of a Security who has been a bona fide Holder
of a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Partnership
or the Guarantor (if the Securities of such series are Guaranteed Securities),
by or pursuant to a Board Resolution or a Guarantor Board Resolution, as the
case may be, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Partnership, the
Guarantor (if the Securities of such series are Guaranteed Securities) and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Partnership and the Guarantor (if the Securities of such series
are Guaranteed Securities). If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Partnership and the
Guarantor (if the Securities of such series are Guaranteed Securities) or the
Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(f) The Partnership shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 609. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Partnership, the Guarantor (if the Securities are Guaranteed
Securities) and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Partnership, the
Guarantor (if the Securities are Guaranteed Securities) or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Partnership, the Guarantor (if the Securities of such series are Guaranteed
Securities), the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof, wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be
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vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Partnership, the Guarantor (if the Securities of such series are Guaranteed
Securities) or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Partnership and the Guarantor (if the Securities of such series are Guaranteed
Securities) shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section 609, as the case may
be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Partnership and the Guarantor (if the Securities of such series
are Guaranteed Securities). Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Partnership and the Guarantor (if the Securities of such series are Guaranteed
Securities) and shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any state or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
Federal or state authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining
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authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. In
case at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Partnership and the Guarantor (if the Securities of such
series are Guaranteed Securities). The Trustee for any series of Securities may
at any time terminate the agency of an Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Partnership and
the Guarantor (if the Securities of such series are Guaranteed Securities). Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee for such series may appoint a
successor Authenticating Agent which shall be acceptable to the Partnership and
the Guarantor (if the Securities of such series are Guaranteed Securities) and
shall give notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve in the manner set
forth in Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Partnership and the Guarantor (if the Securities are
Guaranteed Securities) agree to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[___________________]
as Trustee
Dated: ____________
By:___________________________ By:_______________________
as Authenticating Agent
Dated: ____________ By:______________________
Authorized Signatory
SECTION 612. Certain Duties and Responsibilities of the
Trustee. (a) With respect to the Securities of any series, except during the
continuance of an Event of Default with respect to the Securities of such
series:
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(1) 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
(2) 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, but shall not be under any
duty to verify the contents or accuracy thereof.
(b) In case an Event of Default with respect to the Securities
of any series has occurred and is continuing, the Trustee shall, with respect to
Securities of such series, 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 man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) 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:
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) 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;
(3) 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
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
(4) 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.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 612.
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE,
PARTNERSHIP AND GUARANTOR
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same, agrees
with the Partnership, the Guarantor (if the Securities are Guaranteed
Securities) and the Trustee that none of the Partnership, the Guarantor (if the
Securities are Guaranteed Securities) nor the Trustee nor any Authenticating
Agent nor any Paying Agent nor any Security Registrar shall be held accountable
by reason of the disclosure of any information as to the names and addresses of
the Holders of
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Securities in accordance with TIA Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
TIA Section 312(b).
SECTION 702. Reports by Trustee. The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required by TIA Section 313 at the times and in the manner provided by
the TIA, which shall initially be not less than every twelve months commencing
on [_________________], 1998. A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each stock exchange,
if any, upon which any Securities are listed, with the Commission and with the
Partnership. The Partnership will notify the Trustee when any Securities are
listed on any stock exchange.
SECTION 703. Reports by Partnership and Guarantor. The
Partnership and the Guarantor (if the Securities are Guaranteed Securities)
will:
(1) file with the Trustee, within 15 days after the
Partnership or the Guarantor, as the case may be, 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 Partnership or the Guarantor, as the case
may be, 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 Partnership or the Guarantor, as the case
may be, is not required to file information, documents or
reports pursuant to either of such Sections, then it will file
with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic
information, documents and reports which may be required
pursuant to Section 13 of the 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 Partnership or
the Guarantor, as the case may be, with the conditions and
covenants of this Indenture as may be required from time to
time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities,
within 30 days after the filing thereof with the Trustee, in
the manner and to the extent provided in TIA Section 313(c),
such summaries of any information, documents and reports
required to be filed by the Partnership or the Guarantor, as
the case may be, pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed
from time to time by the Commission.
SECTION 704. Partnership to Furnish Trustee Names and
Addresses of Holders. The Partnership will furnish or cause to be furnished to
the Trustee:
(a) semiannually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities,
semiannually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Partnership of any such request, a list
of similar form and content as of a date not more than 15 days prior to the time
such list is furnished, provided, however, that, so long as the Trustee is the
Security Registrar, no such list shall be required to be furnished.
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ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Partnership and
Sales, Leases and Conveyances Permitted Subject to Certain Conditions. The
Partnership may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any other corporation, provided that
in any such case, (1) either the Partnership shall be the continuing
corporation, or the successor corporation shall be a corporation organized and
existing under the laws of the United States or a State thereof and such
successor corporation shall expressly assume the due and punctual payment of the
principal of (and premium or Make-Whole Amount, if any) and any interest on all
of the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Partnership by supplemental indenture,
complying with Article Nine hereof, satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation and (2) immediately after giving
effect to such transaction and treating any indebtedness which becomes an
obligation of the Partnership or any Subsidiary as a result thereof as having
been incurred by the Partnership or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or the lapse
of time, or both, would become an Event of Default, shall have occurred and be
continuing.
SECTION 802. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Partnership, with the same effect as if it
had been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Partnership, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Partnership and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Partnership, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Partnership to the Trustee for authentication, and any Securities which
such successor corporation thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor corporation,
complies with the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
SECTION 804. Consolidations and Mergers of Guarantor and
Sales, Leases and Conveyances Permitted Subject to Certain Conditions. The
Guarantor may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any other corporation, provided that
in any such case, (1) either the Guarantor shall be the continuing corporation,
or the successor corporation shall be a corporation organized and existing under
the laws of the United States or a State thereof and such successor corporation
shall expressly assume the obligation of the Guarantor under the Guarantee, if
any, and observance of all of the covenants and conditions of this Indenture to
be performed by the Guarantor by supplemental indenture, complying with Article
Nine hereof, satisfactory to the Trustee, executed and delivered to the Trustee
by such corporation and (2) immediately after giving effect to such transaction
and treating the obligation of the Guarantor under the Guarantee, if any, which
becomes an obligation of the Guarantor as a result thereof as having been
incurred by the Guarantor at
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the time of such transaction, no Event of Default, and no event which, after
notice or the lapse of time, or both, would become an Event of Default, shall
have occurred and be continuing.
SECTION 805. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Guarantor, with the same effect as if it
had been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 806. Guarantor's Officers' Certificate and Opinion of
Counsel. Any consolidation, merger, sale, lease or conveyance permitted under
Section 801 is also subject to the condition that the Trustee receive a
Guarantor's Officers' Certificate and an Opinion of Counsel to the effect that
any such consolidation, merger, sale, lease or conveyance, and the assumption by
any successor corporation, complies with the provisions of this Article and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
ARTICLE NINE - SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders of Securities or coupons, the
Partnership and the Guarantor, when authorized by or pursuant to a Board
Resolution or a Guarantor's Resolution, as the case may be, 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 Partnership or the Guarantor and the assumption by any
such successor of the covenants of the Partnership or the
Guarantor contained herein and in the Securities; or
(2) to add to the covenants of the Partnership or the
Guarantor 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 Partnership or the Guarantor; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and
if such Events of Default are to be for the benefit of less
than all series of Securities, stating that such Events of
Default are expressly being included solely for the benefit of
such series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may
provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case
of other defaults) or may provide for an immediate enforcement
upon such default or may limit the remedies available to the
Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or
those series of Securities to which such additional Events of
Default apply to waive such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable
as to principal, to change or eliminate any restrictions on
the payment of principal of or premium or Make-Whole Amount,
if any, or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities,
to permit Bearer
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Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form, provided that
any such action shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons
in any material respect; or
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
shall become effective only when there is no Security
Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series and any related coupons as permitted by Sections
201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the
provisions of this Indenture, provided such provisions shall
not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any
material respect; or
(10) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Securities pursuant to Sections 401, 1402 and 1403; provided
that any such action shall not adversely affect the interests
of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material
respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Partnership, the Guarantor (if such Securities are
Guaranteed Securities) and the Trustee, the Partnership, when authorized by or
pursuant to a Board Resolution, the Guarantor, when authorized pursuant to a
Guarantor's Board Resolution, if applicable, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of
(or premium or Make-Whole Amount, if any, on) or any
installment of principal of or interest on, any Security; or
reduce the principal amount thereof or the rate or amount of
interest thereon, or any premium or Make-Whole Amount payable
upon the redemption thereof, 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 the amount thereof
provable in bankruptcy pursuant to Section 504, or adversely
affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite
currency or currencies in which, any Security or any premium
or Make-Whole Amount or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any
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such payment on or after the Stated Maturity thereof (or, in
the case of redemption or repayment at the option of the
Holder, on or after the Redemption Date or the Repayment Date,
as the case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver with
respect to such series (or compliance with certain provisions
of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting, or
(3) modify or effect in any manner adverse to the
Holders the terms and conditions of the obligations of the
Guarantor in respect of the due and punctual payments of
principal of, or any premium or interest on or any sinking
fund requirements or Additional Amounts with respect to,
Guaranteed Securities, or
(4) modify any of the provisions of this Section,
Section 513 or Section 1009, except to increase the required
percentage to effect such action or to provide that certain
other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding
Security affected thereby, 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 902 and Section 1009, or
the deletion of this proviso, in accordance with the
requirements of Sections 609(b) and 901(11).
It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
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.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Partnership
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Partnership, to any such supplemental
indenture may be prepared and executed
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by the Partnership and authenticated and delivered by the Trustee in exchange
for Outstanding Securities of such series.
ARTICLE TEN - COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole
Amount, if any; and Interest. The Partnership covenants and agrees for the
benefit of the Holders of each series of Securities that it will duly and
punctually pay the principal of (and premium or Make-Whole Amount, if any) and
interest on the Securities of that series in accordance with the terms of such
series of Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 301 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature. Unless otherwise specified with respect to Securities of any
series pursuant to Section 301, at the option of the Partnership, all payments
of principal may be paid by check to the registered Holder of the Registered
Security or other person entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities
of a series are issuable only as Registered Securities, the Partnership or the
Guarantor (if any Guaranteed Securities are outstanding) shall maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Partnership or the
Guarantor (if any Guaranteed Securities are outstanding) in respect of the
Securities of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Partnership or the Guarantor (if
any Guaranteed Securities are outstanding) will maintain: (A) in the Borough of
Manhattan, The City of New York, an office or agency where any Registered
Securities of that series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange, where
notices and demands to or upon the Partnership or the Guarantor (if any
Guaranteed Securities are outstanding) in respect of the Securities of that
series and this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise); (B)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series which is located outside the United States, an office or agency
where Securities of that series and related coupons may be presented and
surrendered for payment; provided, however, that if the Securities of that
series are listed on any stock exchange located outside the United States and
such stock exchange shall so require, the Partnership or the Guarantor (if any
Guaranteed Securities are outstanding) will maintain a Paying Agent for the
Securities of that series in any required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange; and (C) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the
Partnership or the Guarantor (if any Guaranteed Securities are outstanding) in
respect of the Securities of that series and this Indenture may be served. The
Partnership or the Guarantor (if any Guaranteed Securities are outstanding) will
give prompt written notice to the Trustee of the location, and any change in the
location, of each such office or agency. If at any time the Partnership or the
Guarantor (if any Guaranteed Securities are outstanding) shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment at the offices specified in the Security, in London,
England, and the Partnership and the Guarantor each hereby appoints the same as
its agent to receive such respective presentations, surrenders, notices and
demands, and the Partnership and the Guarantor each hereby appoints the Trustee
its agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or Make-Whole Amount
or interest on Bearer Securities shall be made at any office or agency of
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the Partnership in the United States or by check mailed to any address in the
United States or by transfer to an account maintained with a bank located in the
United States; provided, however, that, if the Securities of a series are
payable in Dollars, payment of principal of and any premium or Make-Whole Amount
and interest on any Bearer Security shall be made at the office of the
Partnership's Paying Agent in the Borough of Manhattan, The City of New York, if
(but only if) payment in Dollars of the full amount of such principal, premium
or Make-Whole Amount, or interest, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Partnership
in accordance with this Indenture, is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Partnership or the Guarantor (if any Guaranteed Securities
are outstanding) may 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 of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Partnership of its obligation to maintain an
office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Partnership or the Guarantor (if
any Guaranteed Securities are outstanding) will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Partnership and the Guarantor hereby designates as a Place of
Payment for each series of Securities the office or agency of the Partnership in
the Borough of Manhattan, The City of New York, and initially appoints the
Trustee at its Corporate Trust Office as Paying Agent in such city and as its
agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency,
or so long as it is required under any other provision of the Indenture, then
the Partnership will maintain with respect to each such series of Securities, or
as so required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in
Trust. If the Partnership shall at any time act as its own Paying Agent with
respect to any series of any Securities and any related coupons, it will, on or
before each due date of the principal of (and premium or Make-Whole Amount, if
any), or interest on any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal (and premium or Make-Whole Amount, if any) or interest 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 Partnership shall have one or more Paying Agents
for any series of Securities and any related coupons, it will, on or before each
due date of the principal of (and premium or Make-Whole Amount, if any), or
interest on any Securities of that series, deposit with a Paying Agent a sum (in
the currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the principal
(and premium or Make-Whole Amount, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or Make-Whole Amount, if any, or interest and (unless such Paying Agent
is the Trustee) the Partnership will promptly notify the Trustee of its action
or failure so to act.
The Partnership 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
principal of (and premium or Make- Whole Amount, if any) or
interest on Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
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(2) give the Trustee notice of any default by the
Partnership or the Guarantor (or any other obligor upon the
Securities) in the making of any such payment of principal
(and premium or Make-Whole Amount, if any) or interest on 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 Partnership or the Guarantor (with respect to Securities
that are Guaranteed Securities) 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 or Guarantor Order, as the case may be, direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Partnership 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 Partnership or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such sums.
Except as otherwise provided in the Securities of any series,
any money deposited with the Trustee or any Paying Agent, or then held by the
Partnership, in trust for the payment of the principal of (and premium or
Make-Whole Amount, if any) or interest on any Security of any series and
remaining unclaimed for two years after such principal (and premium or
Make-Whole Amount, if any) or interest has become due and payable shall be paid
to the Partnership upon Partnership Request (or if deposited by the Guarantor,
paid to the Guarantor upon Guarantor Request) or (if then held by the
Partnership) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Partnership or the Guarantor (if the Securities are Guaranteed Securities) for
payment of such principal of (and premium or Make-Whole Amount, if any) or
interest on any Security, without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Partnership 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 Partnership cause to be published once, in
an Authorized Newspaper, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Partnership or the Guarantor, as the case may be.
SECTION 1004. Existence. Subject to Article Eight, the
Partnership and the Guarantor (if any Guaranteed Securities are outstanding)
will do or cause to be done all things necessary to preserve and keep in full
force and effect their respective corporate existence, all material rights (by
articles of incorporation, by-laws and statute) and material franchises;
provided, however, that neither the Partnership nor the Guarantor shall be
required to preserve any such right or franchise if the Partnership or the
Guarantor, as the case may be, shall determine that the preservation thereof is
no longer desirable in the conduct of its business.
SECTION 1005. Maintenance of Properties. The Partnership will
cause all of its material properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Partnership
may be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that the
Partnership and its Subsidiaries shall not be prevented from selling or
otherwise disposing of their properties for value in the ordinary course of
business.
SECTION 1006. Insurance. The Partnership will cause each of
its and its Subsidiaries' insurable properties to be insured against loss or
damage in an amount at least equal to their then full insurable value with
insurers of recognized responsibility.
SECTION 1007. Payment of Taxes and Other Claims. The
Partnership and the Guarantor (if any Guaranteed Securities are outstanding)
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 them or any
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Subsidiary or upon the income, profits or property of the Partnership, the
Guarantor or any Subsidiary, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Partnership, the Guarantor or any Subsidiary; provided, however, that neither
the Partnership nor the Guarantor shall be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Statement as to Compliance. The Partnership and
the Guarantor (if any Guaranteed Securities are outstanding) will deliver to the
Trustee, within 120 days after the end of each fiscal year, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Partnership's or the
Guarantor's, as the case may be, compliance with all conditions and covenants
under this Indenture and, in the event of any noncompliance, specifying such
noncompliance and the nature and status thereof. For purposes of this Section
1008, such compliance shall be determined without regard to any period of grace
or requirement of notice under this Indenture.
SECTION 1009. Waiver of Certain Covenants. The Partnership and
the Guarantor (if any Guaranteed Securities are outstanding) may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 1004 to 1009, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Partnership and the Guarantor, as the
case may be, and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE ELEVEN - REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The
election of the Partnership to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of the
Partnership of less than all of the Securities of any series, the Partnership
shall, at least 45 days prior to the giving of the notice of redemption in
Section 1104 (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Partnership shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series issued on the same day
with the same terms are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series issued on such date with
the same terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Partnership 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.
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For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall
be given in the manner provided in Section 106, not less than 30 days nor more
than 60 days prior to the Redemption Date, unless a shorter period is specified
by the terms of such series established pursuant to Section 301, to each Holder
of Securities to be redeemed, but failure to give such notice in the manner
herein provided to the Holder of any Security designated for redemption as a
whole or in part, or any defect in the notice to any such Holder, shall not
affect the validity of the proceedings for the redemption of any other such
Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amount) of the
particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender of such
Security, the holder will receive, without a charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price
and accrued interest to the Redemption Date payable as
provided in Section 1106, if any, will become due and payable
upon each such Security, or the portion thereof, to be
redeemed and, if applicable, that interest thereon shall cease
to accrue on and after said date,
(6) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with all
coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if
such is the case,
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing
subsequent to the date fixed for redemption or the amount of
any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to
the Partnership, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are not
to be redeemed, and if such Bearer Securities may be exchanged
for Registered Securities not subject to redemption on this
Redemption Date pursuant to Section 305 or otherwise, the last
date, as determined by the Partnership, on which such
exchanges may be made, and
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(10) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed at the
election of the Partnership shall be given by the Partnership
or, at the Partnership's request, by the Trustee in the name
and at the expense of the Partnership.
SECTION 1105. Deposit of Redemption Price. On or prior to any
Redemption Date, the Partnership shall deposit with the Trustee or with a Paying
Agent (or, if the Partnership is acting as its own Paying Agent, which it may
not do in the case of a sinking fund payment under Article Twelve, segregate and
hold in trust as provided in Section 1003) an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay on
the Redemption Date the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Partnership shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Partnership at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
that installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Partnership and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium or Make-Whole
Amount, if any) shall, until paid, bear interest from the Redemption Date at the
rate borne by the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Partnership or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Partnership
and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Partnership shall execute and the Trustee shall
authenticate and deliver to the
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Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered. If a Global Security is so
surrendered, the Partnership shall execute and the Trustee shall authenticate
and deliver to the depository, without service charge, a new Global Security 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 such Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. The Partnership may, in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of a series, (1)
deliver Outstanding Securities of such series (other than any previously called
for redemption) together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto and (2) apply as a credit
Securities of such series which have been redeemed either at the election of the
Partnership pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, as provided for by the terms of such Securities, or which have
otherwise been acquired by the Partnership; provided that such Securities so
delivered or applied as a credit have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
applicable Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Partnership will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such Officers'
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Partnership shall thereupon be
obligated to pay the amount therein specified. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Partnership 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.
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ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities, if any,
and (except as otherwise specified by the terms of such series established
pursuant to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at a price equal to the principal amount thereof, together with interest,
if any, thereon accrued to the Repayment Date specified in or pursuant to the
terms of such Securities. The Partnership covenants that on or prior to the
Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if
the Partnership is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 1003) an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the principal
(or, if so provided by the terms of the Securities of any series, a percentage
of the principal) of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof, as
the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. In order for
any Security to be repaid at the option of the Holder, the Trustee must receive
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places of which the Partnership shall from time to time
notify the Holders of such Securities) not earlier than 60 days nor later than
30 days prior to the Repayment Date (1) the Security so providing for such
repayment together with the "Option to Elect Repayment" form on the reverse
thereof duly completed by the Holder (or by the Holder's attorney duly
authorized in writing) or (2) a telegram, telex, facsimile transmission or a
letter from a member of a national securities exchange, or the National
Association of Securities Dealers, Inc. ("NASD"), or a commercial bank or trust
company in the United States setting forth the name of the Holder of the
Security, the principal amount of the Security, the principal amount of the
Security to be repaid, the CUSIP number, if any, or a description of the tenor
and terms of the Security, a statement that the option to elect repayment is
being exercised thereby and a guarantee that the Security to be repaid, together
with the duly completed form entitled "Option to Elect Repayment" on the reverse
of the Security, will be received by the Trustee not later than the fifth
Business Day after the date of such telegram, telex, facsimile transmission or
letter; provided, however, that such telegram, telex, facsimile transmission or
letter shall only be effective if such Security and form duly completed are
received by the Trustee by such fifth Business Day. If less than the entire
principal amount of such Security is to be repaid in accordance with the terms
of such Security, the principal amount of such Security to be repaid, in
increments of the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security surrendered that
is not to be repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not be repaid in
part if, following such repayment, the unpaid principal amount of such Security
would be less than the minimum authorized denomination of Securities of the
series of which such Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at the option of
the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Partnership.
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable. If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Partnership on the Repayment
Date therein specified, and on and after such Repayment Date (unless the
Partnership shall default in the payment of such Securities on such Repayment
Date) such Securities shall, if the same were interest-bearing, cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities
so to be repaid, except to the
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extent provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid shall be paid by the Partnership, together with
accrued interest, if any, to the Repayment Date; provided, however, that coupons
whose Stated Maturity is on or prior to the Repayment Date shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified pursuant to Section
301, only upon presentation and surrender of such coupons; and provided further
that, in the case of Registered Securities, installments of interest, if any,
whose Stated Maturity is on or prior to the Repayment Date shall be payable (but
without interest thereon, unless the Partnership shall default in the payment
thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Partnership and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Partnership shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Partnership, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article: Partnership's Option
to Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301,
provision is made for either or both of (a) defeasance of the Securities of or
within a series under Section 1402 or (b) covenant defeasance of the Securities
of or within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Partnership may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. Defeasance and Discharge. Upon the Partnership's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, each of the Partnership and the Guarantor (if
the Securities of such series are Guaranteed Securities) shall be deemed to have
been discharged from its obligations with respect to such Outstanding Securities
and any coupons appertaining thereto and under the Guarantee in respect thereof
(if applicable, respectively) on the date the conditions set forth in Section
1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Partnership shall be deemed to
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have paid and discharged the entire indebtedness represented by such Outstanding
Securities and any coupons appertaining thereto, and the Guarantee in respect
thereof (if the Securities of such series are Guaranteed Securities), which
shall thereafter be deemed to be "Outstanding" only for the purposes of Section
1405 and the other Sections of this Indenture referred to in clauses (A) and (B)
below, and to have satisfied all of its other obligations under such Securities
and any coupons appertaining thereto, and the Guarantee in respect thereof (if
the Securities of such series are Guaranteed Securities), and this Indenture
insofar as such Securities and any coupons appertaining thereto are concerned
(and the Trustee, at the expense of the Partnership and the Guarantor (if the
Securities of such series are Guaranteed Securities), shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of (and premium
or Make-Whole Amount, if any) and interest, if any, on such Securities and any
coupons appertaining thereto when such payments are due, (B) the Partnership's
obligations with respect to such Securities under Sections 305, 306, 1002 and
1003, (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article. Subject to compliance with this Article
Fourteen, the Partnership may exercise its option under this Section
notwithstanding the prior exercise of its option under Section 1403 with respect
to such Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Partnership's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, each of the Partnership and the Guarantor (if
the Securities of such series are Guaranteed Securities) shall be released from
its obligations under Sections 1004 to 1009, inclusive, and, if specified
pursuant to Section 301, its obligations under any other covenant contained
herein or in any indenture supplemental hereto, with respect to such Outstanding
Securities and any coupons appertaining thereto, and the Guarantee in respect
thereof (if the Securities of such series are Guaranteed Securities), on and
after the date the conditions set forth in Section 1404 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Sections 1004 to 1009,
inclusive, or such other covenant, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities and any coupons
appertaining thereto, the Partnership and the Guarantor (if applicable), may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an Event
of Default under Section 501(4) or 501(8) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such Securities
and any coupons appertaining thereto and the Guarantee in respect thereof (if
the Securities of such series are Guaranteed Securities) shall be unaffected
thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402 or Section
1403 to any Outstanding Securities of or within a series and any coupons
appertaining thereto and the Guarantee in respect thereof (if the Securities of
such series are Guaranteed Securities):
(a) The Partnership or the Guarantor (if the Securities of
such series are Guaranteed Securities) shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the provisions of
this Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
coupons appertaining thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any coupons appertaining thereto are
then specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and coupons appertaining thereto (determined on
the basis of the currency, currencies or currency unit in which such Securities
and coupons appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled
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payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than the due date of any payment of principal of
(and premium or Make-Whole Amount, if any) and interest, if any, on such
Securities and any coupons appertaining thereto, money in an amount, or (3) a
combination thereof, in any case, in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (i) the principal of (and premium or Make-Whole Amount, if any)
and interest, if any, on such Outstanding Securities and any coupons
appertaining thereto on the Stated Maturity of such principal or installment of
principal or interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any coupons appertaining
thereto on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities and any coupons appertaining
thereto.
(b) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Partnership or the
Guarantor (if the Securities are Guaranteed Securities) is a party or by which
it is bound.
(c) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 501(6) and 501(7) are
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the
Partnership or the Guarantor (if the Securities are Guaranteed Securities) shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Partnership or the Guarantor (if the Securities are Guaranteed Securities) has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred.
(e) In the case of an election under Section 1403, the
Partnership or the Guarantor (if the Securities of such series are Guaranteed
Securities) shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not occurred.
(f) The Partnership or the Guarantor (if the Securities of
such series are Guaranteed Securities) shall have delivered to the Trustee an
Officers' Certificate or a Guarantor's Officers' Certificate, as the case may
be, and an Opinion of Counsel, each stating that all conditions precedent to the
defeasance under Section 1402 or the covenant defeasance under Section 1403 (as
the case may be) have been complied with and an Opinion of Counsel to the effect
that either (i) as a result of a deposit pursuant to subsection (a) above and
the related exercise of the Partnership's option under Section 1402 or Section
1403 (as the case may be), registration is not required under the Investment
Company Act of 1940, as amended, by the Partnership, with respect to the trust
funds representing such deposit or by the Trustee for such trust funds or (ii)
all necessary registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which
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may be imposed on the Partnership or the Guarantor (if the Securities of such
series are Guaranteed Securities) in connection therewith pursuant to Section
301.
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the
last paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Partnership acting as its own, or the Guarantor acting as, Paying
Agent) as the Trustee may determine, to the Holders of such Securities and any
coupons appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium or Make-Whole Amount, if any) and interest,
but such money need not be segregated from other funds except to the extent
required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section 1404(a) has
been made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 301 or the terms of
such Security to receive payment in a currency or currency unit other than that
in which the deposit pursuant to Section 1404(a) has been made in respect of
such Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium or Make-Whole
Amount, if any), and interest, if any, on such Security as the same becomes due
out of the proceeds yielded by converting (from time to time as specified below
in the case of any such election) the amount or other property deposited in
respect of such Security into the currency or currency unit in which such
Security becomes payable as a result of such election or Conversion Event based
on the applicable market exchange rate for such currency or currency unit in
effect on the second Business Day prior to each payment date, except, with
respect to a Conversion Event, for such currency or currency unit in effect (as
nearly as feasible) at the time of the Conversion Event.
The Partnership or the Guarantor (if such Securities are
Guaranteed Securities) shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding,
subject to Section 606, the Trustee shall deliver or pay to the Partnership or
the Guarantor (if such Securities are Guaranteed Securities) from time to time
upon Partnership Request or Guarantor Request, as the case may be, any money or
Government Obligations (or other property and any proceeds therefrom) held by it
as provided in Section 1404 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect a defeasance or covenant
defeasance, as applicable, in accordance with this Article.
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
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SECTION 1502. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1501, to be held at such time and at such
place as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 20 nor more than 180
days prior to the date fixed for the meeting.
(b) In case at any time the Partnership, pursuant to a Board
Resolution, the Guarantor, pursuant to a Guarantor Board Resolution, or the
Holders of at least 25% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 20 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Partnership, the Guarantor 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
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel, any representatives of the Partnership and its counsel and any
representatives of the Guarantor and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at the reconvening of any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days; at the reconvening of any meeting adjourned or further
adjourned for lack of a quorum, the persons entitled to vote 25% in aggregate
principal amount of the then Outstanding Securities shall constitute a quorum
for the taking of any action set forth in the notice of the original meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1502(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities represented at such meeting; provided, however, that,
except as limited by the proviso to Section 902, any resolution with respect to
any request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
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Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for
such meeting; and
(ii) the principal amount of the Outstanding
Securities of such series that vote in favor of such request,
demand, authorization, direction, notice, consent, waiver or
other action shall be taken into account in determining
whether such request, demand, authorization, direction,
notice, consent, waiver or other action has been made, given
or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Partnership or by Holders of Securities as provided in Section 1502(b), in
which case the Partnership 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.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
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permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
Series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Partnership 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 - GUARANTEE
SECTION 1601. Guarantee. The Guarantee set forth in this
Article Sixteen shall only be in effect with respect to Securities of a series
to the extent such Guarantee is made applicable to such series in accordance
with Section 301. The Guarantor hereby unconditionally guarantees to each Holder
of a Guaranteed Security authenticated and delivered by the Trustee the due and
punctual payment of the principal of, any premium and interest on such
Guaranteed Security and the due and punctual payment of the sinking fund
payments (if any) provided for pursuant to the terms of such Guaranteed
Security, when and as the same shall become due and payable, whether at
maturity, by acceleration, redemption, repayment or otherwise, in accordance
with the terms of such Security and of this Indenture. In case of the failure of
the Partnership punctually to pay any such principal, premium, interest or
sinking fund payment, the Guarantor hereby agrees to cause any such payment to
be made punctually when and as the same shall become due and payable, whether at
maturity, upon acceleration, redemption, repayment or otherwise, and as if such
payment were made by the Partnership.
The Guarantor hereby agrees that its obligations hereunder
shall be as principal and not merely as surety, and shall be absolute,
irrevocable and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any Guaranteed Security or this
Indenture, any failure to enforce the provisions of any Guaranteed Security or
this Indenture, or any waiver, modification, consent or indulgence granted with
respect thereto by the Holder of such Guaranteed Security or the Trustee, the
recovery of any judgment against the Partnership or any action to enforce the
same, or any other circumstances which may otherwise constitute a legal or
equitable discharge of a surety or guarantor. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger, insolvency or bankruptcy of the Partnership, any right to
require a proceeding first against the Partnership, protest or notice with
respect to any such Guaranteed Security or the Indebtedness evidenced thereby
and all demands whatsoever, and covenants that this Guarantee will not be
discharged except by payment in full of the principal of, any premium or
interest on, and sinking fund payment required with respect to, the Guaranteed
Securities and the complete performance of all other obligations contained in
the Guaranteed Securities.
This Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time payment on any Guaranteed
Security, in whole or in part, is rescinded or must otherwise be restored to
Partnership, the Guarantor upon the bankruptcy, liquidation or reorganization of
the Partnership or otherwise.
The Guarantor shall be subrogated to all rights of the Holder
of any Guaranteed Security against the Partnership in respect of any amounts
paid to such Holder by the Guarantor pursuant to the provisions of this
Guarantee; provided, however, that the Guarantor shall not be entitled to
enforce, or to receive any payments arising out of or based upon, such right of
subrogation until the principal of, any premium and interest on, and sinking
fund payments required with respect to, all Guaranteed Securities shall have
been paid in full.
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SIGNATURES AND SEALS
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first above written.
Brandywine Operating Partnership, L.P.
By: Brandywine Realty Trust, its general partner
By: ________________________________
Name:
Title:
Brandywine Realty Trust, as Guarantor
By: ____________________________________
Name:
Title:
______________________________, as Trustee
By: ____________________________________
Name:
Title:
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ACKNOWLEDGMENT
STATE OF [____________________] )
) ss:
COUNTY OF )
On the [_______________________] 1998, before me personally came
[_________________], to me known, who, being by me duly sworn, did depose and
say that he is the [__________________] of Brandywine Realty Trust, acting in
its capacity as general partner of Brandywine Operating Partnership, L.P., one
of the parties described in and which executed the foregoing instrument, and
that he signed his name thereto by authority of the Board of Trustees of said
Company.
[Notarial Seal]
______________________________
Notary Public
Commission Expires
STATE OF [____________________] )
) ss:
COUNTY OF )
On the [____________________________] 1998, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he is the __________________ of Brandywine Realty Trust, one of the parties
described in and which executed the foregoing instrument, and that he signed his
name thereto by authority of the Board of Trustees of said Company.
[Notarial Seal]
_______________________________
Notary Public
Commission Expires
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EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR SECURITY
[Face of Security]
[If the Holder of this Security (as indicated below) is The Depository Trust
Company ("DTC") or a nominee of DTC, this Security is a Global Security and the
following two legends apply:
Unless this Security is presented by an authorized representative of The
Depository Trust Company ("DTC"), 55 Water Street, New York, New York to the
issuer or its agent for registration of transfer, exchange or payment, and such
Security issued is registered in the name of CEDE & CO., or such other name as
requested by an authorized representative of DTC, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since the
registered owner hereof, CEDE & CO., has an interest herein.
Unless and until this Security is exchanged in whole or in part for Securities
in certificated form, this Security may not be transferred except as a whole by
DTC to a nominee thereof or by a nominee thereof to DTC or another nominee of
DTC or by DTC or any such nominee to a successor of DTC or a nominee of such
successor.]
[If this Security is an Original Issue Discount Security, insert -- FOR PURPOSES
OF SECTION 1273 and 1275 OF THE UNITED STATES INTERNAL REVENUE CODE, THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS % OF ITS PRINCIPAL AMOUNT, THE
ISSUE DATE IS , 19 [AND] THE YIELD TO MATURITY IS %. [THE METHOD USED TO
DETERMINE THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL
PERIOD OF _______, 19__ TO _________, 19__, IS ___% OF THE PRINCIPAL AMOUNT OF
THIS SECURITY.]
Brandywine Operating Partnership, L.P.
[Designation of Series]
No. $
Brandywine Operating Partnership, L.P., a Delaware limited partnership (herein
referred to as the "Partnership," which term includes any successor corporation
under the Indenture referred to on the reverse hereof), for value received,
hereby promises to pay to ______________________________ or registered assigns
the principal sum of _______ Dollars on _____________________ (the "Stated
Maturity Date") [or insert date fixed for earlier redemption (the "Redemption
Date," and together with the Stated Maturity Date with respect to principal
repayable on such date, the "Maturity Date.")]
[If the Security is to bear interest prior to Maturity, insert -- and to pay
interest thereon from ______________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
__________ and _________ in each year (each, an "Interest Payment Date"),
commencing __________, at the rate of __% per annum, until the principal hereof
is paid or duly provided for. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Holder in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the ________ or ______ (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date [at the office or agency of the Partnership maintained for such purpose;
provided, however, that such interest may be paid, at the Partnership's option,
by mailing a check to such Holder at its registered address or by transfer of
funds to an account maintained by such Holder within the United States]. Any
such interest not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date, and may be paid to the
Holder in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not
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<PAGE>
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.]
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at the
[Stated] Maturity Date and in such case the overdue principal of this Security
shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on demand
shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.] The
principal of this Security payable on the Stated Maturity Date [or the principal
of, premium or Make-Whole Amount, if any, and, if the Redemption Date is not an
Interest Payment Date, interest on this Security payable on the Redemption Date]
will be paid against presentation of this Security at the office or agency of
the Partnership maintained for that purpose in ___________________, in such coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest payable on this Security on any Interest Payment Date and on the
[Stated] Maturity Date [or Redemption Date, as the case may be,] will include
interest accrued from and including the next preceding Interest Payment Date in
respect of which interest has been paid or duly provided for (or from and
including ____________, if no interest has been paid on this Security) to but
excluding such Interest Payment Date or the [Stated] Maturity Date [or
Redemption Date, as the case may be.] If any Interest Payment Date or the
[Stated] Maturity Date or [Redemption Date] falls on a day that is not a
Business Day, as defined below, principal, premium or Make-Whole Amount, if any,
and/or interest payable with respect to such Interest Payment Date or [Stated]
Maturity Date [or Redemption Date, as the case may be,] will be paid on the next
succeeding Business Day with the same force and effect as if it were paid on the
date such payment was due, and no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date or [Stated] Maturity
Date [or Redemption Date, as the case may be.] "Business Day" means any day,
other than a Saturday or Sunday, on which banks in __________________ are not
required or authorized by law or executive order to close.
[If this Security is a Guaranteed Security, insert -- As more fully provided in
the Indenture, all payments of principal, premium, if any, and interest in
respect of this Security are fully and unconditionally guaranteed by Brandywine
Realty Trust, a Maryland business trust (herein referred to as the "Guarantor,"
which term includes any successor corporation referred to in the Indenture).]
[If this Security is a Global Security, insert -- All payments of principal,
premium or Make- Whole Amount, if any, and interest in respect of this Security
will be made by the Partnership in immediately available funds.] Reference is
hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Security shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
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<PAGE>
IN WITNESS WHEREOF, the Partnership has caused this instrument to be duly
executed under its facsimile corporate seal.
Dated: Brandywine Operating Partnership, L.P.
By: Brandywine Realty Trust
Attest:
By: _____________________________
Secretary Name:
Title:
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<PAGE>
[Reverse of Security]
Brandywine Operating Partnership, L.P.
This Security is one of a duly authorized issue of securities of the Partnership
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of _____________, 199_ (herein called the
"Indenture") between the Partnership, the Guarantor (if the Securities are
guaranteed by the Guarantor ("Guaranteed Securities")) and _________________, as
Trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture with respect to the series of which this Security is a
part), to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Partnership, the Guarantor (if the
Securities are guaranteed by the Guarantor "Guaranteed Securities"), the Trustee
and the Holders of the Securities, and of the terms upon which the Securities
are, and are to be, authenticated and delivered. This Security is one of the
duly authorized series of Securities designated on the face hereof
(collectively, the "Securities"), [if applicable, insert -- and the aggregate
principal amount of the Securities to be issued under such series is limited to
$______ (except for Securities authenticated and delivered upon transfer of, or
in exchange for, or in lieu of other Securities).] All terms used in this
Security which are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture. [If
applicable, insert -- The Securities may not be redeemed prior to the Stated
Maturity Date.]
[If applicable, insert -- The Securities are subject to redemption [ (l) (If
applicable, insert -- on _________ in any year commencing with the year ____ and
ending with the year ____ through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, and (2) ] [If
applicable, insert -- at any time [on or after ___________], as a whole or in
part, at the election of the Partnership, at the following Redemption Prices
(expressed as percentages of the principal amount):
If redeemed on or before _______, __% and if redeemed during the 12-month period
beginning _______ of the years indicated at the Redemption Prices indicated
below.
Year Redemption Price Year Redemption Price
- ---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption [If applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date; provided, however, that installments of interest on this
Security whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holder of this Security, or one or more Predecessor Securities,
of record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities are subject to
redemption (1) on _______ in any year commencing with the year ____ and ending
with the year ____ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after _______], as a whole or in part, at the
election of the Partnership, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12- month
period beginning ________ of the years indicated,
A-4
<PAGE>
Year Redemption Price for Redemption Price for
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Sinking fund of the Sinking Fund
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, that installments of interest on this Security whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holder of
this Security, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the
Partnership may not, prior to _______, redeem any Securities as contemplated by
[Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Partnership (calculated in accordance
with generally accepted financial practice) of less than __% per annum.]
[If applicable, insert -- The sinking fund for the Securities
provides for the redemption on _______ in each year, beginning with the year
____ and ending with the year ____, of [not less than] $_______] [("mandatory
sinking fund") and not more than $_______] aggregate principal amount of the
Securities. [The Securities acquired or redeemed by the Partnership otherwise
than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made in
the [describe order] order in which they become due.]]
Notice of redemption will be given by mail to Holders of
Securities, not less than 30 nor more than 60 days prior to the Redemption Date,
all as provided in the Indenture.
In the event of redemption of this Security in part only, a
new Security or Securities for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Partnership, the Guarantor (if the Securities are Guaranteed
Securities) and the rights of the Holders of the Securities under the Indenture
at any time by the Partnership, the Guarantor (if the Securities are Guaranteed
Securities) and the Trustee with the consent of the Holders of not less than a
majority of the aggregate principal amount of all Securities issued under the
Indenture at the time Outstanding and affected thereby. The Indenture also
contains provisions permitting the Holders of not less than a majority of the
aggregate principal amount of the Outstanding Securities, on behalf of the
Holders of all such Securities, to waive compliance by the Partnership with
certain provisions of the Indenture. Furthermore, provisions in the Indenture
permit the Holders of not less than a majority of the aggregate principal
amount, in certain instances, of the Outstanding Securities of any series to
waive, on behalf of all of the Holders of Securities of such series, certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and other Securities issued
upon the registration of transfer hereof or in exchange here for or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Partnership or the Guarantor (if the Securities are Guaranteed Securities),
which is absolute and unconditional, to pay the principal of (and premium or
Make-Whole Amount, if any) and interest on this Security at the times, places
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein [and herein] set forth, the transfer of this Security is
registrable in the Security Register of the Partnership upon surrender of this
Security for
A-5
<PAGE>
registration of transfer at the office or agency of the Partnership in any place
where the principal of (and premium or Make-Whole Amount, if any) and interest
on this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Partnership, the Guarantor
(if the Securities are Guaranteed Securities), and the Security Registrar duly
executed by, the Holder hereof or by his attorney duly authorized in writing,
and thereupon one or more new Securities, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
As provided in the Indenture and subject to certain
limitations therein [and herein] set forth, this Security is exchangeable for a
like aggregate principal amount of Securities of different authorized
denominations but otherwise having the same terms and conditions, as requested
by the Holder hereof surrendering the same. The Securities of this series are
issuable only in registered form [without coupons] in denominations of $_______
and any integral multiple thereof.
No service charge shall be made for any such registration of
transfer or exchange, but the Partnership may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith, Prior to due presentment of this Security for registration of
transfer, the Partnership, the Guarantor (if the Securities are Guaranteed
Securities), the Trustee and any agent of the Partnership, the Guarantor (if the
Securities are Guaranteed Securities), or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Partnership, the
Guarantor (if the Securities are Guaranteed Securities), the Trustee nor any
such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of
or premium or Make- Whole Amount, if any, or the interest on this Security, or
for any claim based hereon, or otherwise in respect hereof, or based on or in
respect of the Indenture or any indenture supplemental thereto, against any
past, present or future limited partner, shareholder, employee, officer,
director or trustee, as such, of the Partnership, the Guarantor (if the
Securities are Guaranteed Securities), or of any successor, either directly or
through the Partnership, the Guarantor (if the Securities are Guaranteed
Securities), or any successor, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
The Indenture and the Securities 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 entirely in such State.
A-6
<PAGE>
EXHIBIT B
FORMS OF CERTIFICATION
EXHIBIT B-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered] This is to certify that, as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 2.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise Brandywine Operating Partnership, L.P. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
B-1
<PAGE>
Dated: ________, ____
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii)
the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
_______________________________________
(Authorized Signature)
Name:
Title:
B-2
<PAGE>
EXHIBIT B-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S.$] principal amount of the above-captioned Securities (i) is
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("United States person(s)"), (ii) is owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise Brandywine
Operating Partnership, L.P. or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"Possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary Global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof. We understand that this
certification is required in connection with certain tax legislation in the
United States. If administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy thereof to any
interested party in such proceedings.
B-3
<PAGE>
Dated: _______ ____
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of New York,
Brussels Office,] as Operator of the Euroclear
System [CEDEL S.A.]
By: ________________________________________
B-4
<PAGE>
EXHIBIT 4.5
BRANDYWINE OPERATING PARTNERSHIP, L.P. and
BRANDYWINE REALTY TRUST
TO
[ ]
Trustee
-------------------
Indenture
Dated as of [ ,] 1998
-------------------
Subordinated Debt Securities
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
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<S> <C>
RECITALS .........................................................................................................1
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.............................................1
SECTION 101. Definitions................................................................................1
SECTION 102. Compliance Certificates and Opinions.......................................................9
SECTION 103. Form of Documents Delivered to Trustee....................................................10
SECTION 104. Acts of Holders...........................................................................10
SECTION 105. Notices, etc..............................................................................12
SECTION 106. Notice to Holders: Waiver.................................................................12
SECTION 107. Counterparts; Effect of Headings and Table of Contents....................................13
SECTION 108. Successors and Assigns....................................................................13
SECTION 109. Severability Clause.......................................................................13
SECTION 110. Benefits of Indenture.....................................................................13
SECTION 111. Governing Law.............................................................................13
SECTION 112. Legal Holidays............................................................................13
SECTION 113. Immunity of Limited Partners, Shareholders, Trustees, Officers and Agents of the
Partnership and the Guarantor.............................................................14
SECTION 114. Conflict with Trust Indenture Act.........................................................14
ARTICLE TWO - SECURITIES FORMS...................................................................................14
SECTION 201. Forms of Securities.......................................................................14
SECTION 202. Form of Trustee's Certificate of Authentication...........................................14
SECTION 203. Securities Issuable in Global Form........................................................14
ARTICLE THREE - THE SECURITIES...................................................................................15
SECTION 301. Amount Unlimited; Issuable in Series......................................................15
SECTION 302. Denominations.............................................................................18
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..............................................................................27
SECTION 310. Computation of Interest...................................................................28
ARTICLE FOUR - SATISFACTION AND DISCHARGE........................................................................28
SECTION 401. Satisfaction and Discharge of Indenture...................................................28
SECTION 402. Application of Trust Funds................................................................29
ARTICLE FIVE - REMEDIES..........................................................................................29
SECTION 501. Events of Default..........................................................................29
SECTION 502. Acceleration of Maturity; Rescission and Annulment.........................................31
</TABLE>
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<S> <C>
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee............................31
SECTION 504. Trustee May File Proofs of Claim...........................................................32
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons.....................33
SECTION 506. Application of Money Collected.............................................................33
SECTION 507. Limitation on Suits........................................................................33
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium or Make-Whole
Amount, if any, and Interest..............................................................34
SECTION 509. Restoration of Rights and Remedies.........................................................34
SECTION 510. Rights and Remedies Cumulative.............................................................34
SECTION 511. Delay or Omission Not Waiver...............................................................34
SECTION 512. Control by Holders of Securities...........................................................35
SECTION 513. Waiver of Past Defaults....................................................................35
SECTION 514. Waiver of Usury, Stay or Extension Laws....................................................35
SECTION 515. Undertaking for Costs......................................................................35
ARTICLE SIX - THE TRUSTEE........................................................................................36
SECTION 601. Notice of Defaults.........................................................................36
SECTION 602. Certain Rights of Trustee..................................................................36
SECTION 603. Not Responsible for Recitals or Issuance of Securities.....................................37
SECTION 604. May Hold Securities........................................................................37
SECTION 605. Money Held in Trust........................................................................37
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests.............................38
SECTION 608. Resignation and Removal; Appointment of Successor..........................................38
SECTION 609. Acceptance of Appointment by Successor.....................................................40
SECTION 610. Merger, Conversion, Consolidation or Succession to Business................................40
SECTION 611. Appointment of Authenticating Agent........................................................41
SECTION 612. Certain Duties and Responsibilities of the Trustee.........................................42
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE, PARTNERSHIP
AND GUARANTOR....................................................................................43
SECTION 701. Disclosure of Names and Addresses of Holders...............................................43
SECTION 702. Reports by Trustee.........................................................................43
SECTION 703. Reports by Partnership and Guarantor.......................................................43
SECTION 704. Partnership to Furnish Trustee Names and Addresses of Holders..............................44
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE ................................................44
SECTION 801. Consolidations and Mergers of Partnership and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions.......................................44
SECTION 802. Rights and Duties of Successor Corporation.................................................44
SECTION 803. Officers' Certificate and Opinion of Counsel...............................................45
SECTION 804. Consolidations and Mergers of Guarantor and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions.......................................45
SECTION 805. Rights and Duties of Successor Corporation.................................................45
SECTION 806. Guarantor's Officers' Certificate and Opinion of Counsel...................................45
</TABLE>
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ARTICLE NINE - SUPPLEMENTAL INDENTURES...........................................................................45
SECTION 901. Supplemental Indentures Without Consent of Holders.........................................45
SECTION 902. Supplemental Indentures with Consent of Holders............................................47
SECTION 903. Execution of Supplemental Indentures.......................................................48
SECTION 904. Effect of Supplemental Indentures..........................................................48
SECTION 905. Conformity with Trust Indenture Act........................................................48
SECTION 906. Reference in Securities to Supplemental Indentures.........................................48
ARTICLE TEN - COVENANTS..........................................................................................48
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, if any; and Interest..................48
SECTION 1002. Maintenance of Office or Agency...........................................................48
SECTION 1003. Money for Securities Payments to Be Held in Trust.........................................49
SECTION 1004. Existence.................................................................................51
SECTION 1005. Maintenance of Properties.................................................................51
SECTION 1006. Insurance.................................................................................51
SECTION 1007. Payment of Taxes and Other Claims.........................................................51
SECTION 1008. Statement as to Compliance................................................................51
SECTION 1009. Waiver of Certain Covenants...............................................................51
ARTICLE ELEVEN - REDEMPTION OF SECURITIES .......................................................................51
SECTION 1101. Applicability of Article..................................................................51
SECTION 1102. Election to Redeem; Notice to Trustee.....................................................52
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.........................................52
SECTION 1104. Notice of Redemption......................................................................52
SECTION 1105. Deposit of Redemption Price...............................................................53
SECTION 1106. Securities Payable on Redemption Date.....................................................53
SECTION 1107. Securities Redeemed in Part...............................................................54
ARTICLE TWELVE - SINKING FUNDS...................................................................................54
SECTION 1201. Applicability of Article..................................................................54
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.....................................54
SECTION 1203. Redemption of Securities for Sinking Fund.................................................55
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS ...........................................................55
SECTION 1301. Applicability of Article..................................................................55
SECTION 1302. Repayment of Securities...................................................................55
SECTION 1303. Exercise of Option........................................................................55
SECTION 1304. When Securities Presented for Repayment Become Due and Payable............................56
SECTION 1305. Securities Repaid in Part.................................................................56
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE ...........................................................57
SECTION 1401. Applicability of Article: Partnership's Option to Effect
Defeasance or Covenant Defeasance........................................................57
SECTION 1402. Defeasance and Discharge..................................................................57
SECTION 1403. Covenant Defeasance.......................................................................57
SECTION 1404. Conditions to Defeasance or Covenant Defeasance...........................................58
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions...........................................................59
</TABLE>
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ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES..............................................................60
SECTION 1501. Purposes for Which Meetings May Be Called.................................................60
SECTION 1502. Call, Notice and Place of Meetings........................................................60
SECTION 1503. Persons Entitled to Vote at Meetings......................................................60
SECTION 1504. Quorum; Action............................................................................60
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.......................61
SECTION 1506. Counting Votes and Recording Action of Meetings...........................................62
ARTICLE SIXTEEN - GUARANTEE......................................................................................62
SECTION 1601. Guarantee................................................................................62
ARTICLE SEVENTEEN - SUBORDINATION OF SECURITIES .................................................................63
SECTION 1701. Agreement to Subordinate..................................................................63
SECTION 1702. Payment Over of Proceeds upon Dissolution, Etc............................................63
SECTION 1703. No Payment When Senior Indebtedness in Default............................................64
SECTION 1704. Reliance by Senior Indebtedness on Subordination Provisions...............................65
SECTION 1705. Subrogation to Rights of Holders of Senior Indebtedness...................................65
SECTION 1706. Provisions Solely to Define Relative Rights...............................................65
SECTION 1707. Trustee to Effectuate Subordination.......................................................66
SECTION 1708. No Waiver of Subordination Provisions.....................................................66
SECTION 1709. Notice to Trustee.........................................................................66
SECTION 1710. Reliance on Judicial Order or Certificate of Liquidating Agent............................67
SECTION 1711. Trustee Not Fiduciary for Holders of Senior Indebtedness..................................67
SECTION 1712. Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee's Rights......67
SECTION 1713. Article Applicable to Paying Agents.......................................................67
EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SUBORDINATED SECURITY.............................................. 1
EXHIBIT B
FORMS OF CERTIFICATION.................................................................................. 1
</TABLE>
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<PAGE>
BRANDYWINE OPERATING PARTNERSHIP, L.P. and
BRANDYWINE REALTY TRUST
Reconciliation and tie between Trust Indenture Act of 1939
(the "Trust Indenture Act" or "TIA") and Indenture, dated as of [ ,] 1998.
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
----------- ------------------
<S> <C>
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607, 608
312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
316(a) (last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
</TABLE>
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
Attention should also be directed to TIA Section 318(c), which provides
that the provisions of TIA Sections 310 to and including 317 of the Trust
Indenture Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
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<PAGE>
INDENTURE, dated as of [ ,] 1998, between Brandywine Operating
Partnership, L.P., a limited partnership organized under the laws of the State
of Delaware (hereinafter called the "Partnership"), having its principal office
at 16 Campus Boulevard, Newtown Square, PA 19073, Brandywine Realty Trust, a
real estate investment trust organized under the laws of the State of Maryland
(hereinafter called the "Company" or the "Guarantor"), having its principal
office at 16 Campus Boulevard, Newtown Square, PA 19073, and
[___________________], a banking association organized under the laws of the
_____________________________ as Trustee hereunder (hereinafter called the
"Trustee"), having a Corporate Trust Office at _______________________________].
RECITALS
The Company, as general partner of the Partnership, deems it
necessary to cause the Partnership to issue from time to time for its lawful
purposes subordinated debt securities (hereinafter called the "Securities")
evidencing its unsecured and subordinated indebtedness, and has duly authorized
the execution and delivery of this Indenture to provide for the issuance from
time to time of the Securities, to be issued in one or more series as provided
in this Indenture. All things necessary to make this Indenture a valid agreement
of the Partnership, in accordance with its terms, have been done.
For value received, the execution and delivery by the Company
of this Indenture to provide for the issuance of the Guarantee provided for
herein have been duly authorized. In addition, 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 (the "Trust Indenture Act" or "TIA"), that are
deemed to be incorporated into this Indenture and shall, to the extent
applicable, 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 thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or 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 TIA, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash
transaction" and "self-liquidating paper," as used in TIA
Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
and
(4) the words "herein," "hereof "and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
<PAGE>
"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 611 hereof to act on behalf of the Trustee to
authenticate Securities.
"Authorized Newspaper" means a newspaper, printed in the
English language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community of each
such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or in
different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to
Section 201 which is payable to bearer.
"Board of Trustees" means the board of trustees of the
Company, in its capacity as general partner of the Partnership, or any committee
of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company, to have been duly
adopted by the Board of Trustees, on behalf of the Company in its capacity as
general partner of the Partnership, and to be in full force and effect on the
date such certification is delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
issued pursuant to Section 301, any day, other than a Saturday or Sunday, that
is not a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"Capital Stock" of any Person means any and all shares,
interests, participations, rights to purchase, warrants, options or other
equivalents (however designated) of corporate stock or other equity of such
Person.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres,
S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company, as general partner
of the Partnership, by its Chairman of the Board, the President or a Vice
President, and by its Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
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<PAGE>
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes, Securities or Guaranteed
Securities, as the case may be, to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes, Securities or Guaranteed Securities, as the case
may be. "Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Partnership.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
on the third business day preceding such a redemption date, as set forth in the
daily statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, the average of
all Reference Treasury Dealer Quotations for such redemption date.
"Consolidated Net Assets" means as of any particular time the
aggregate amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom all current liabilities except for
(a) notes and loans payable, (b) current maturities of long-term debt and (c)
current maturities of obligations under capital leases, all as set forth on the
most recent consolidated balance sheet of the Partnership and its consolidated
Subsidiaries and computed in accordance with generally accepted accounting
principles and practices as in effect on [_____________] [the date of the this
Indenture].
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit (or composite currency) other than the ECU for the purposes for which it
was established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at
[______________________________].
"corporation" includes corporations, associations, companies,
partnerships, business trusts and real estate investment trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning specified in Section 501.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, or its successor as operator of the Euroclear System.
-3-
<PAGE>
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU issued by the
government of one or more countries other than the United States of America or
by any recognized confederation or association of such governments.
"GAAP" means, except as otherwise provided herein, generally
accepted accounting principles, as in effect from time to time, as used in the
United States applied on a consistent basis.
"Global Security" means a Security evidencing all or a part of
a series of Securities issued to and registered in the name of the depository
for such series, or its nominee, in accordance with Section 305, and bearing the
legend prescribed in Section 203.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Guaranty" means the unconditional guarantee of the payment of
the principal of or any premium or interest on the Guaranteed Securities by the
Guarantor, as more fully set forth in Article Sixteen.
"Guaranteed Securities" means a series of Securities made
subject to a Guarantee (as set forth in Article Sixteen) pursuant to Section
301.
"Guarantor" means the Person named as the "Guarantor" 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
"Guarantor" shall mean such successor Person.
"Guarantor's Board of Trustees" means the board of trustees
(or directors, as the case may be) of the Guarantor or any committee of that
board duly authorized to act generally or in any particular respect for the
Guarantor hereunder.
"Guarantor's Trustee Resolution" means a copy of one or more
resolutions, certified by the Secretary or an Assistant Secretary of the
Guarantor to have been duly adopted by the Guarantor's Board of Trustees and to
be in full force and effect on the date of such certification, is delivered to
the Trustee.
-4-
<PAGE>
"Guarantor's Officers' Certificate" means a certificate signed
by the Chairman of the Board, the President or a Vice President, and by the
Secretary or an Assistant Secretary, of the Guarantor, that complies with the
requirements of Section 314(e) of the Trust Indenture Act and is delivered to
the Trustee.
"Guarantor Request" and "Guarantor Order" means, respectively,
a written request or order signed in the name of the Guarantor by the Chairman
of the Board, the President or the Vice President, and by the Secretary or an
Assistant Secretary, of the Guarantor, and delivered to the Trustee.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
"Indebtedness" means, with respect to any Person, without
duplication, (i) any Obligation of such Person relating to any indebtedness of
such Person (A) for borrowed money (whether or not the recourse of the lender is
to the whole of the assets, of such person or only to a portion thereof), (B)
evidenced by notes, debentures or similar instruments (including purchase money
obligations) given in connection with the acquisition of any property or assets
(other than trade accounts payable for inventory or similar property acquired in
the ordinary course of business), including securities, for the payment of which
such Person is liable, directly or indirectly, or the payment of which is
secured by a lien, charge or encumbrance on property or assets of such Person,
(C) for goods, materials or services purchased in the ordinary course of
business (other than trade accounts payable arising in the ordinary course of
business), (D) with respect to letters of credit or bankers acceptances issued
for the account of such Person or performance, surety or similar bonds, (E) for
the payment of money relating to a Capitalized Lease Obligation or (F) under
interest rate swaps, caps or similar agreements and foreign exchange contracts,
currency swaps or similar agreements; (ii) any liability of others of the kind
described in the preceding clause (i), which such Person has guaranteed or which
is otherwise its legal liability; and (iii) any and all deferrals, renewals,
extensions and refunding of, or amendments, modifications or supplements to, any
liability of the kind described in any of the preceding clauses (i) or (ii).
"Indenture" means this instrument as originally executed or as
it may be supplemented or amended from time to time by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may be supplemented or
amended from time to time by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
the or those particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"Interest," when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, shall
mean interest payable after Maturity.
"Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
-5-
<PAGE>
"Make-Whole Amount," when used with respect to any Security,
means the amount, if any, in addition to principal which is required by a
Security, under the terms and conditions specified therein or as otherwise
specified as contemplated by Section 301, to be paid by the Partnership to the
Holder thereof in connection with any optional redemption or accelerated payment
of such Security.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"Obligation" of any Person with respect to any specified
Indebtedness means any obligation of such Person to pay principal, premium,
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to such Person, whether or not a claim
for such post-petition interest is allowed in such Proceeding), penalties,
reimbursement or indemnification amounts, fees, expenses or other amounts
relating to such Indebtedness.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President and by the Secretary or
an Assistant Secretary of the Company, as general partner of the Partnership,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Partnership or who may be an employee of or other counsel
for the Partnership or the Guarantor, as the case may be, and who shall be
satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding," when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose
payment or redemption (including repayment at the option of
the Holder) money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Partnership or the Guarantor) in trust or set aside and
segregated in trust by the Partnership or the Guarantor (if
the Partnership shall act as its own, or authorize the
Guarantor to act as, Paying Agent) for the Holders of such
Securities and any coupons appertaining thereto; provided,
however, that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee
has been made;
(iii) Securities, except to the extent provided in
Sections 1402 and 1403, with respect to which the Partnership
or the Guarantor has effected defeasance and/or covenant
defeasance as provided in Article Fourteen; 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 Partnership;
-6-
<PAGE>
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Partnership, of the principal amount (or,
in the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv) Securities owned
by the Partnership, the Guarantor or any other obligor upon the Securities or
any Affiliate of the Partnership, the Guarantor or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities owned as provided in clause (iv) above 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 Partnership, the Guarantor or
any other obligor upon the Securities or any Affiliate of the Partnership, the
Guarantor or such other obligor. In case of a dispute as to such right, the
advice of counsel shall be full protection in respect of any decision made by
the Trustee in accordance with such advice.
"Paying Agent" means any Person authorized by the Partnership
to pay the principal of (and premium or Make-Whole Amount, if any) or interest
on any Securities or coupons on behalf of the Partnership.
"Payment Blockage Notice" and "Payment Blockage Period" have
the respective meanings specified in Section 1703.
"Person" means any individual, corporation, partnership, 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 or within any series, means the place or places where the principal of (and
premium or Make-Whole Amount, if any) and interest on such Securities are
payable as specified as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Proceeding" has the meaning specified in Section 1702.
"Redemption Date," when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
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<PAGE>
"Redemption Price," when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Treasury Dealer" means each of [_________________],
and their respective successors; provided, however, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer in New York City
(a "Primary Treasury Dealer"), the Partnership shall substitute therefor another
Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third business day preceding such redemption date.
"Registered Security" shall mean any Security which is
registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment by
or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid by or pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee,
means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any 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 such officer's knowledge and familiarity with the
particular subject.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means Indebtedness of the Partnership,
whether outstanding on the date of this Indenture or thereafter created,
incurred, assumed or guaranteed by the Partnership, other than the following:
(1) any Indebtedness as to which, in the instrument evidencing such Indebtedness
or pursuant to which such Indebtedness was issued, it is expressly provided that
such Indebtedness is subordinate in right of payment to all Indebtedness of the
Partnership not expressly subordinated to such Indebtedness; (2) any
Indebtedness which by its terms refers explicitly to the Securities and states
that such Indebtedness shall not be senior, shall be pari passu or shall be
subordinated in right of payment to the Securities; and (3) with respect to any
series of Securities, any Indebtedness of the Partnership evidenced by
Securities of the same or of another series. Notwithstanding anything
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<PAGE>
to the contrary in the foregoing, Senior Indebtedness shall not include: (a)
Indebtedness of or amounts owed by the Partnership for compensation to
employees, or for goods, materials or services purchased in the ordinary course
of business, or (b) Indebtedness of the Partnership to a Subsidiary of the
Partnership.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated under the Securities Act of 1933) of the Partnership.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date fixed
by the Partnership pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Partnership or by
one or more other Subsidiaries of the Partnership. For the purposes of this
definition, "voting stock" means stock having voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
"Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States Federal income
taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Partnership or the Guarantor to the Trustee to
take any action under any provision of this Indenture, the Partnership or the
Guarantor, as the case may be, shall furnish to the Trustee an Officers'
Certificate or a Guarantor's Officers' Certificate, as the case may be, stating
that all conditions precedent, if any, provided for in this Indenture relating
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to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1008) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such condition or covenant has been complied
with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied
with.
SECTION 103. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion 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, in
its own capacity or as general partner of the Partnership, may be based, insofar
as it relates to legal matters, upon an Opinion of Counsel, or a certificate or
representations by counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the opinion, certificate or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such Opinion of Counsel or certificate or representations may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the Company, in its own
capacity or as general partner of the Partnership, stating that the information
as to such factual matters is in the possession of the Company, in its own
capacity or as general partner of the Partnership, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. If Securities of
a series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, 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
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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 Partnership the Guarantor. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such instrument
or instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee, the Partnership and the Guarantor and any
agent of the Trustee, the Partnership or the Guarantor, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take 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
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other reasonable manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be
proved by the Security Register. As to any matter relating to beneficial
ownership interests in any Global Security, the appropriate depository's records
shall be dispositive for purposes of this Indenture.
(d) The ownership of Bearer Securities may be proved
by the production of such Bearer Securities or by a certificate executed, as
depository, by any trust company, bank, banker or other depository, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depository, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee, the Partnership and the Guarantor may assume that
such ownership of any Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some other
Person, or (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding. The ownership of
Bearer Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Partnership or the Guarantor shall solicit
from the Holders of Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Partnership or the
Guarantor, as the case may be, may, at its option, in or pursuant to a Board
Resolution or a Guarantor's Board Resolution, as the case may be, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but
neither the Partnership nor the Guarantor shall have any obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
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(f) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent, the
Partnership or the Guarantor in reliance thereon, whether or not notation of
such action is made upon such Security.
SECTION 105. Notices, etc., to Trustee, Partnership and
Guarantor. 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, the Partnership or
the Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at
[__________________________]; or
(2) the Partnership or the Guarantor 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
Partnership or the Guarantor, as the case may be, addressed to
it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the
Partnership or the Guarantor, as the case may be, Attention:
Chief Financial Officer (with a copy to the General Counsel),
or
(3) either the Trustee or the Partnership or the
Guarantor, by the other party, shall be sufficient for every
purpose hereunder if given by facsimile transmission, receipt
confirmed by telephone followed by an original copy delivered
by guaranteed overnight courier; if to the Trustee at
facsimile number [_________________]; and if to the
Partnership or the Guarantor at facsimile number (610)
323-5622.
SECTION 106. Notice to Holders: Waiver. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Partnership or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, if any, and
not earlier than the earliest date, if any, prescribed for the giving of such
notice. In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered Securities
as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities on a Business Day, such publication to be not later than the
latest date, if any, and not earlier than the earliest date, if any, prescribed
for the giving of such notice. Any such notice shall be deemed to have been
given on the date of such publication or, if published more than once, on the
date of the first such publication.
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If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Counterparts; Effect of Headings and Table of
Contents. This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and
agreements in this Indenture by the Partnership shall bind its successors and
assigns, whether so expressed or not.
SECTION 109. Severability Clause. In case any provision in
this Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture
or in the Securities or coupons, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law. This Indenture and the Securities
and coupons shall be governed by and construed in accordance with the law of the
State of New York. This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security or the last date on which a Holder has the
right to exchange a Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or principal (and premium or Make-Whole Amount, if any) or exchange of
such security need not be made at such Place of Payment on such date, but
(except as otherwise provided in the supplemental indenture with respect to such
Security) may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date or sinking fund payment date, or at the Stated
Maturity or Maturity, or on such last day for exchange, provided that no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be.
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SECTION 113. Immunity of Limited Partners, Shareholders,
Trustees, Officers and Agents of the Partnership and the Guarantor. No recourse
under or upon any obligation, covenant or agreement contained in this Indenture,
or in any Security, or because of any indebtedness evidenced thereby, shall be
had against any past, present or future limited partner, shareholder, employee,
officer or trustee, as such, of the Partnership, the Guarantor (if the
Securities are Guaranteed Securities), or of any successor, either directly or
through the Partnership, the Guarantor (if the Securities are Guaranteed
Securities), or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Securities by the Holders and as part of the
consideration for the issue of the Securities.
SECTION 114. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with another provision hereof
which is required or deemed to be included in this Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control. If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
ARTICLE TWO - SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities,
if any, of each series and the Bearer Securities, if any, of each series and
related coupons shall be substantially in the form of Exhibit A hereto or in
such other form as shall be established in one or more indentures supplemental
hereto or approved from time to time by or pursuant to a Board Resolution in
accordance with Section 301, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Partnership may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or mechanically reproduced on
safety paper or may be produced in any other manner, all as determined by the
officers executing such Securities or coupons, as evidenced by their execution
of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[___________________]
as Trustee
Dated: _____________________ By:_____________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities
of or within a series are issuable in the form of one or more Global Securities,
then, notwithstanding clause (8) of Section 301 and the provisions of Section
302, any such Global Security or Securities may provide that it or they shall
represent the aggregate amount of all Outstanding Securities of such series (or
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such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of any Global Security to
reflect the amount, or any increase or decrease in the amount, or changes in the
rights of Holders thereof, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner or 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 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Global
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 Global Security shall be in writing but need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Global Security if such Security was never
issued and sold by the Partnership and the Partnership delivers to the Trustee
the Global Security together with written instructions (which need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel) with
regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium or Make-Whole Amount, if any, and interest on any Global Security in
permanent global form shall be made to the registered Holder thereof.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Partnership, the Trustee and any agent
of the Partnership and the Trustee shall treat as the Holder of such principal
amount of Outstanding Securities represented by a permanent Global Security (i)
in the case of a permanent Global Security in registered form, the Holder of
such permanent Global Security in registered form, or (ii) in the case of a
permanent Global Security in bearer form, Euroclear or CEDEL.
Any Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
"This Security is a Global Security within the meaning set
forth in the Indenture hereinafter referred to and is
registered in the name of a Depository or a nominee of a
Depository. This Security is exchangeable for Securities
registered in the name of a person other than the Depository
or its nominee only in the limited circumstances described in
the Indenture, and may not be transferred except as a whole by
the Depository to a nominee of the Depository or by a nominee
of the Depository to the Depository or another nominee of the
Depository or by the Depository or its nominee to a successor
Depository or its nominee."
ARTICLE THREE - THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set forth
in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) The title of the Securities of the series (which
shall distinguish the Securities of such series from all other
series of Securities);
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(2) Any limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
or in exchange or, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) The price (expressed as a percentage of the
principal amount thereof) at which such Securities will be
issued and, if other than the principal amount thereof, the
portion of the principal amount thereof payable upon
declaration of acceleration of the maturity thereof;
(4) The date or dates, or the method for determining
such date or dates, on which the principal of such Securities
will be payable;
(5) The rate or rates (which may be fixed or
variable), or the method by which such rate or rates shall be
determined, at which such Securities will bear interest, if
any;
(6) The date or dates, or the method for determining
such date or dates, from which any such interest will accrue,
the dates on which any such interest will be payable, the
record dates for such interest payment dates, or the method by
which such dates shall be determined, the persons to whom such
interest shall be payable, and the basis upon which interest
shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(7) The place or places where the principal of (and
premium or Make-Whole Amount, if any) and interest, if any, on
such Securities will be payable, where such Securities may be
surrendered for registration of transfer or exchange and where
notices or demands to or upon the Partnership in respect of
such Securities and this Indenture may be served;
(8) The period or periods, if any, within which, the
price or prices at which and the other terms and conditions
upon which such Securities may, pursuant to any optional or
mandatory redemption provisions, be redeemed, as a whole or in
part, at the option of the Partnership;
(9) The obligation, if any, of the Partnership to
redeem, repay or purchase such Securities pursuant to any
sinking fund or analogous provision or at the option of a
holder thereof, and the period or periods within which, the
price or prices at which and the other terms and conditions
upon which such Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such obligation;
(10) If other than Dollars, the currency or
currencies in which such Securities are denominated and
payable, which may be a foreign currency or units of two or
more foreign currencies or a composite currency or currencies,
the manner of determining the equivalent thereof in Dollars
for purposes of the definition of "Outstanding" in Section
101, and the terms and conditions relating thereto;
(11) Whether the amount of payments of principal of
(and premium or Make-Whole Amount, if any, including any
amount due upon redemption, if any) or interest, if any, on
such Securities may be determined with reference to an index,
formula or other method (which index, formula or method may,
but need not be, based on the yield on or trading price of
other securities, including United States Treasury securities
or on a currency, currencies, currency unit or units, or
composite currency or currencies) and the manner in which such
amounts shall be determined;
(12) Whether the principal of (and premium or
Make-Whole Amount, if any) or interest on the Securities of
the series are to be payable, at the election of the
Partnership or a holder thereof, in a currency or currencies,
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currency unit or units or composite currency or
currencies other than that in which such Securities are
denominated or stated to be payable, the period or periods
within which, and the terms and conditions upon which, such
election may be made, and the time and manner of, and identity
of the exchange rate agent with responsibility for,
determining the exchange rate between the currency or
currencies, currency unit or units or composite currency or
currencies in which such Securities are denominated or stated
to be payable and the currency or currencies, currency unit or
units or composite currency or currencies in which such
Securities are to be so payable;
(13) Provisions, if any, granting special rights to
the holders of Securities of the series upon the occurrence of
such events as may be specified;
(14) Any deletions from, modifications of or
additions to the Events of Default or covenants of the
Partnership with respect to Securities of the series, whether
or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein;
(15) Whether and under what circumstances the
Partnership will pay any additional amounts on such Securities
in respect of any tax, assessment or governmental charge and,
if so, whether the Partnership will have the option to redeem
such Securities in lieu of making such payment;
(16) 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 (if
permitted by applicable laws and regulations), whether any
Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series
are to be issuable in permanent global form with or without
coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests
for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the
manner provided in the Indenture, and, if Registered
Securities of the series are to be issuable as a Global
Security, the identity of the depository for such series;
(17) 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;
(18) The Person to whom any interest on any
Registered Security of the series shall be payable, if other
than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining
thereto as they severally mature, and the extent to which, or
the manner in which, any interest payable on a temporary
Global Security on an Interest Payment Date will be paid if
other than in the manner provided herein;
(19) If the Securities of such series are to be
Guaranteed Securities;
(20) The applicability, if any, of the defeasance and
covenant defeasance provisions of Article Fourteen hereof to
the Securities of the series;
(21) If the Securities of such series are to be
issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security of such series) only
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upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions; and
(22) Any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy of
an appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company, as general partner of the Partnership,
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the Securities of such series.
SECTION 302. Denominations. The Securities of each series
shall be issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions with respect to the Securities of any series,
the Securities of such series, other than Global Securities (which may be of any
denomination), shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf
of the Company, as general partner of the Partnership, by its Chairman of the
Board, its President or one of its Vice Presidents, under its trust seal
reproduced thereon, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities and
coupons may be manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company, as general partner of the Partnership, shall bind the Partnership,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Partnership may deliver Securities of any
series, together with any coupon appertaining thereto, executed by the
Partnership to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that, in connection with its original issuance,
no Bearer Security shall be mailed or otherwise delivered to any location in the
United States; and provided further that, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, a Bearer Security
may be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished a certificate to
Euroclear or CEDEL, as the case may be, in the form set forth in Exhibit B-1 to
this Indenture or such other certificate as may be specified with respect to any
series of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary Global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
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interest in such permanent Global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and canceled.
If all 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 or formula, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall be
fully protected in relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and
any coupons have been established in conformity with
the provisions of this Indenture;
(b) the terms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture; and
(c) such Securities, together with any
coupons appertaining thereto, when completed by
appropriate insertions and executed and delivered by
the Partnership to the Trustee for authentication in
accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this
Indenture and issued by the Partnership in the manner
and subject to any conditions specified in such
Opinion of Counsel, will constitute legal, valid and
legally binding obligations of the Partnership,
enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization and other similar laws of
general applicability relating to or affecting the
enforcement of creditors' rights generally and to
general equitable principles; and
(ii) an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating
to the issuance of the Securities have been complied with and
that, to the best of the knowledge of the signers of such
certificate, that no Event of Default with respect to any of
the Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Officers' Certificate
otherwise required pursuant to Section 301 or a Company Order, or an Opinion of
Counsel or an Officers' Certificate otherwise required pursuant to the preceding
paragraph at the time of issuance of each Security of such series, but such
order, opinion and certificates, with appropriate modifications to cover such
future issuances, shall be delivered at or before the time of issuance of the
first Security of such series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
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authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, 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
(including a Global Security) shall have been authenticated and delivered
hereunder but never issued and sold by the Partnership, and the Partnership
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 Partnership, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any
series, the Partnership may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Global Securities (which shall
be exchanged as otherwise provided herein or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Partnership 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 Partnership
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Partnership
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and provided
further that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
Section 303. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, the following provisions of this Section 304(b) shall govern the
exchange of temporary Securities other than through the facilities of The
Depository Trust Company. If any such temporary Security is issued in global
form, then such temporary Global Security shall, unless otherwise provided
therein, be delivered to the London office of a depository or common depository
(the "Common Depository"), for the benefit of Euroclear and CEDEL, for credit to
the respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
Global Security (the "Exchange Date"), the Partnership shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary Global Security, executed by the Partnership.
On or after the Exchange Date, such temporary Global Security shall be
surrendered by the Common Depository to the Trustee, as the Partnership's agent
for such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary Global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such temporary
Global Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary Global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 301,
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and, if any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, unless otherwise specified in such
temporary Global Security, upon such presentation by the Common Depository, such
temporary Global Security is accompanied by a certificate dated the Exchange
Date or a subsequent date and signed by Euroclear as to the portion of such
temporary Global Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by CEDEL as
to the portion of such temporary Global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in
such other form as may be established pursuant to Section 301; and provided
further that definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary Global Security only in compliance with the requirements
of Section 303.
Unless otherwise specified in such temporary Global Security,
the interest of a beneficial owner of Securities of a series in a temporary
Global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit B-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary Global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary Global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary Global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary Global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit B-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary Global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit B-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary Global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary Global Security will be
made unless and until such interest in such temporary Global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Partnership.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Partnership shall cause to be kept at the Corporate Trust Office
of the Trustee or in any office or agency of the Partnership or the Guarantor in
a Place of Payment a register for each series of Securities (the registers
maintained in such office or in any such office or agency of the Partnership or
the Guarantor in a Place of Payment being herein sometimes referred to
collectively as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the
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Partnership or the Guarantor shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Security Register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. The Trustee, at its Corporate Trust
Office, is hereby initially appointed "Security Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities on such
Security Register as herein provided. In the event that the Trustee shall cease
to be Security Registrar, it shall have the right to examine the Security
Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender
for registration of transfer of any Registered Security of any series at any
office or agency of the Partnership in a Place of Payment for that series, the
Partnership shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount, bearing a number not contemporaneously outstanding,
and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option
of the Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Partnership shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officers' Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, any such permitted exchange
may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Partnership and the Guarantor (if such Securities are
Guaranteed Securities) 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 Partnership, the Guarantor (if such Securities are Guaranteed
Securities) and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Partnership shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
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Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent Global Security shall be
exchangeable only as provided in this paragraph. If the depository for any
permanent Global Security is The Depository Trust Company ("DTC"), then, unless
the terms of such Global Security expressly permit such Global Security to be
exchanged in whole or in part for definitive Securities, a Global Security may
be transferred, in whole but not in part, only to a nominee of DTC, or by a
nominee of DTC to DTC, or to a successor to DTC for such Global Security
selected or approved by the Partnership or to a nominee of such successor to
DTC. If at any time DTC notifies the Partnership that it is unwilling or unable
to continue as depository for the applicable Global Security or Securities or if
at any time DTC ceases to be a clearing agency registered under the Securities
Exchange Act of 1934 if so required by applicable law or regulation, the
Partnership shall appoint a successor depository with respect to such Global
Security or Securities. If (x) a successor depository for such Global Security
or Securities is not appointed by the Partnership within 90 days after the
Partnership receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (y) an Event of Default has occurred and is
continuing and the beneficial owners representing a majority in principal amount
of the applicable series of Securities represented by such Global Security or
Securities advise DTC to cease acting as depository for such Global Security or
Securities or (z) the Partnership, in its sole discretion, determines at any
time that all Outstanding Securities (but not less than all) of any series
issued or issuable in the form of one or more Global Securities shall no longer
be represented by such Global Security or Securities, then the Partnership shall
execute, and the Trustee shall authenticate and deliver definitive Securities of
like series, rank, tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such Global Security or Securities. If
any beneficial owner of an interest in a permanent global Security is otherwise
entitled to exchange such interest for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable notice
provided in the permanent Global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Partnership shall execute, and the
Trustee shall authenticate and deliver definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent Global Security. On or after the earliest date on
which such interests may be so exchanged, such permanent Global Security shall
be surrendered for exchange by DTC or such other depository as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Partnership's agent for such purpose; provided, however, that no such exchanges
may occur during a period beginning at the opening of business 15 days before
any selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption; and provided further that no Bearer Security delivered in
exchange for a portion of a permanent Global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent Global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent Global Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Partnership and the
Guarantor (if such Securities are Guaranteed Securities), evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required by
the Partnership or the Security Registrar) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Partnership and
the Security Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
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No service charge shall be made for any registration of
transfer or exchange of Securities, but the Partnership may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Partnership or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any Security if such
Security may be among those selected for redemption during a period beginning at
the opening of business 15 days before selection of the Securities to be
redeemed under Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if such Securities are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon appertaining to
it is surrendered to the Trustee or the Partnership, together with, in proper
cases, such security or indemnity as may be required by the Partnership or the
Trustee to save each of them or any agent of either of them harmless, the
Partnership shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Partnership, the Guarantor
(if the Securities are Guaranteed Securities) and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Partnership, the Guarantor (if the Securities are Guaranteed Securities) or
the Trustee that such Security or coupon has been acquired by a bona fide
purchaser, the Partnership shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Security
or in exchange for the Security to which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or stolen), a new
Security of the same series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Partnership in its discretion
may, instead of issuing a new Security, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen coupon appertains, pay such
Security or coupon; provided, however, that payment of principal of (and premium
or Make- Whole Amount, if any), and any interest on, Bearer Securities shall,
except as otherwise provided in Section 1002, be payable only at an office or
agency located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Partnership 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.
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Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Partnership and the Guarantor (if such Security is a
Guaranteed Security), whether or not the destroyed, lost or stolen Security and
its coupons, if any, or the destroyed, lost or stolen coupon shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, interest on any Registered
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Partnership maintained for such purpose pursuant to Section 1002; provided,
however, that each installment of interest on any Registered Security may at the
Partnership's option be paid by (i) mailing a check for such interest, payable
to or upon the written order of the Person entitled thereto pursuant to Section
308, to the address of such Person as it appears on the Security Register or
(ii) transfer to an account maintained by the payee located inside the United
States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest may be made, in the
case of a Bearer Security, by transfer to an account maintained by the payee
with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the
case may be, with respect to that portion of such permanent global Security held
for its account by Cede & Co. or the Common Depository, as the case may be, for
the purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Partnership or the Guarantor (if such
Registered Security is a Guaranteed Security), at its election in each case, as
provided in clause (1) or (2) below:
(1) The Partnership or the Guarantor (if the
Registered Security is a Guaranteed Security) may elect to
make payment of any Defaulted Interest to the Persons in whose
names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close
of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Partnership or the Guarantor (if the Registered
Security is a
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Guaranteed Security), as the case may be, shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Registered Security of such series
and the date of the proposed payment (which shall not be less
than 20 days after such notice is received by the Trustee),
and at the same time the Partnership or the Guarantor (if the
Registered Security is a Guaranteed Security), as the case may
be, shall deposit with the Trustee an amount of money in the
currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series) equal to the aggregate
amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Partnership or the Guarantor (if the
Registered Security is a Guaranteed Security) of such Special
Record Date and, in the name and at the expense of the
Partnership or the Guarantor, as the case may be, shall cause
notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Registered Securities of
such series at his address as it appears in the Security
Register not less than 10 days prior to such Special Record
Date. The Trustee may, in its discretion, in the name and at
the expense of the Partnership, cause a similar notice to be
published at least once in an Authorized Newspaper in each
Place of Payment, but such publications shall not be a
condition precedent to the establishment of such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following
clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such
series after the close of business at such office or agency on
any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment
of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date
of payment and Defaulted Interest will not be payable on such
proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Partnership or the Guarantor (if the
Registered Security is a Guaranteed Security) may make payment
of any Defaulted Interest on the Registered Securities of any
series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the
Partnership or the Guarantor (if the Registered Security is a
Guaranteed Security), as the case may be, 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 Partnership or the
Guarantor (if such Registered Security is a Guaranteed Security), the Trustee
and any agent of the Partnership or the Guarantor (if such Registered Security
is a Guaranteed Security) or the Trustee may treat the Person in whose name
such Registered Security is registered as the owner of such Security
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for the purpose of receiving payment of principal of (and premium or Make-Whole
Amount, if any), and (subject to Sections 305 and 307) interest on, such
Registered Security and for all other purposes whatsoever, whether or not such
Registered Security be overdue, and neither the Partnership, the Guarantor (if
such Registered Security is a Guaranteed Security), the Trustee nor any agent of
the Partnership, the Guarantor (if such Registered Security is a Guaranteed
Security) or the Trustee shall be affected by notice to the contrary. All such
payments so made to any such Person, or upon such Person's order, shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for money payable upon any such Security.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Partnership, the Guarantor (if the
Registered Security is a Guaranteed Security) the Trustee and any agent of the
Partnership, the Guarantor (if the Registered Security is a Guaranteed Security)
or the Trustee may treat the Holder of any Bearer Security and the Holder of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither the
Partnership, the Guarantor (if the Registered Security is a Guaranteed
Security), the Trustee nor any agent of the Partnership, the Guarantor (if the
Registered Security is a Guaranteed Security) or the Trustee shall be affected
by notice to the contrary.
No Holder of any beneficial interest in any Global Security
held on its behalf by a depository shall have any rights under this Indenture
with respect to such Global Security and such depository shall be treated by the
Partnership, the Guarantor (if such Registered Security is a Guaranteed
Security), the Trustee, and any agent of the Partnership, the Guarantor (if such
Registered Security is a Guaranteed Security) or the Trustee as the owner of
such Global Security for all purposes whatsoever. None of the Partnership, the
Guarantor (if the Registered Security is a Guaranteed Security), the Trustee,
any Paying Agent or the Security Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Notwithstanding the foregoing, with respect to any Global
Security, nothing herein shall prevent the Partnership, the Guarantor (if such
Registered Security is a Guaranteed Security), the Trustee, or any agent of the
Partnership, the Guarantor (if such Registered Security is a Guaranteed
Security) or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depository, as a Holder, with respect to
such Global Security or impair, as between such depository and owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such depository (or its
nominee) as Holder of such Global Security.
SECTION 309. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be promptly
canceled by it. The Partnership or the Guarantor (if the Registered Security is
a Guaranteed Security) may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Partnership or the Guarantor (if the Registered Security is a Guaranteed
Security) may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Partnership has not
issued and sold, and all Securities so delivered shall be promptly canceled by
the Trustee. If the Partnership or the Guarantor (if the Registered Security is
a Guaranteed Security) shall so acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. Canceled
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Partnership
or the Guarantor (if such Registered Security is a Guaranteed Security) unless
the Trustee is otherwise directed by a Company Order.
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SECTION 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest on the Securities of each series shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
ARTICLE FOUR - SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Partnership Request or Guarantor Request (if the applicable
series of Securities is a series of Guaranteed Securities) cease to be of
further effect with respect to any series of Securities specified in such
Partnership Request or Guarantor Request, as the case may be (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for), and the Trustee, upon receipt of a
Company Order or a Guarantor Order, and at the expense of the Partnership or the
Guarantor, as the case may be, shall execute instruments in form and substance
satisfactory to the Trustee and the Partnership or the Guarantor, as the case
may be, acknowledging satisfaction and discharge of this Indenture as to such
series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Partnership and thereafter repaid to the Partnership or
discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Partnership, 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 Partnership, and the Partnership
or the Guarantor (if the Securities of such series are
Guaranteed Securities), in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an
amount in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities
of such series are payable, sufficient to pay and discharge
the entire indebtedness on such Securities and such coupons
not theretofore delivered to the Trustee for cancellation,
for principal (and premium or Make-Whole Amount, if any) and
interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
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(2) the Partnership or the Guarantor (if the
Securities of such series are Guaranteed Securities) has paid
or caused to be paid all other sums payable hereunder by the
Partnership; and
(3) the Partnership has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel and the
Guarantor has delivered to the Trustee a Guarantor's Officers'
Certificate (if the Securities of such series are Guaranteed
Securities), each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Partnership and the Guarantor to any Authenticating Agent
under Section 611 and, if money shall have been deposited with and held by the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Partnership acting as its own, or the Guarantor acting as, Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium or Make-Whole Amount, if any), and any interest for whose
payment such money has been deposited with or received by the Trustee, but such
money need not be segregated from other funds except to the extent required by
law.
ARTICLE FIVE - REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever
used herein with respect to any particular series of Securities, means any one
of the following events (whatever the reason for such Event of Default and
whether or not it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest on any
Security of that series or of any coupon appertaining thereto,
when such interest or coupon becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium or Make- Whole Amount, if any, on) any Security of
that series when it becomes due and payable at its Maturity;
or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of any Security of that
series; or
(4) default in the performance, or breach, of any
covenant or warranty of the Partnership or the Guarantor (if
the Securities of such series are Guaranteed Securities) in
this Indenture with respect to any Security of that series
(other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Partnership and the
Guarantor (if the Securities of such series are Guaranteed
Securities) by the Trustee or to the Partnership, the
Guarantor (if the Securities of such series are Guaranteed
Securities) 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
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(5) a default under any bond, debenture, note or
other evidence of indebtedness for money borrowed (except
mortgage indebtedness) by the Partnership, the Guarantor (if
the Securities of such series are Guaranteed Securities) or
any of the Partnership's subsidiaries in an aggregate
principal amount in excess of $25,000,000 or under any
indenture or instrument under which there may be issued or by
which there may be secured or evidenced any indebtedness for
money borrowed (except mortgage indebtedness) by the
Partnership, the Guarantor (if the Securities of such series
are Guaranteed Securities) or any of the Partnership's
subsidiaries in an aggregate principal amount in excess of
$25,000,000, whether such indebtedness exists on the date of
such Indenture or shall thereafter be created, which default
shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would
otherwise have become due and payable or such obligations
being accelerated, without such acceleration having been
rescinded or annulled, within a period of 10 days after there
shall have been given, by registered or certified mail, to the
Partnership or the Guarantor, as the case may be, by the
Trustee or to the Partnership or the Guarantor, as the case
may be, and the Trustee by the Holders of at least 10% in
principal amount of the outstanding Securities of that series
a written notice specifying such default and requiring the
Partnership or the Guarantor, as the case may be, to cause
such indebtedness to be discharged or cause such acceleration
to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(6) the Partnership, the Guarantor (if the Securities
of such series are Guaranteed Securities) or any Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for
relief against it in an involuntary case,
(C) consents to the appointment of a
Custodian of it or for all or substantially all of
its property, or
(D) makes a general assignment for the
benefit of its creditors; or
(7) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Partnership,
the Guarantor (if the Securities of such series are
Guaranteed Securities) or any Significant Subsidiary
in an involuntary case,
(B) appoints a Custodian of the Partnership,
the Guarantor (if the Securities of such series are
Guaranteed Securities) or any Significant Subsidiary
or for all or substantially all of any of other
property, or
(C) orders the liquidation of the
Partnership, the Guarantor (if the Securities of such
series are Guaranteed Securities) or any Significant
Subsidiary, and the order or decree remains unstayed
and in effect for 90 days; or
(8) any other Event of Default provided with respect
to Securities of that series.
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As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S. Code
or any similar Federal or state law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
Securities of that Series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal as may be specified in the terms
thereof) of all the Securities of that series to be due and payable immediately,
by a notice in writing to the Partnership, the Guarantor (if the Securities of
such series are Guaranteed Securities) (if the Securities of such series are
Guaranteed Securities) (and to the Trustee if given by the Holders), and upon
any such declaration such principal or specified portion thereof shall become
immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Partnership, the Guarantor (if the Securities of such series are Guaranteed
Securities) and the Trustee, may rescind and annul such declaration of
acceleration and its consequences if:
(1) the Partnership or the Guarantor (if the
Securities of such series are Guaranteed Securities) has paid
or deposited with the Trustee a sum sufficient to pay in the
currency, currency unit or composite currency in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such
series):
(A) all overdue installments of interest on
all Outstanding Securities of that series and any
related coupons,
(B) the principal of (and premium or
Make-Whole Amount, if any, on) any Outstanding
Securities of that series which have become due
otherwise than by such declaration of acceleration
and interest thereon at the rate or rates borne by or
provided for in such Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue
installments of interest at the rate or rates borne
by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default with respect to Securities
of that series, other than the nonpayment of the principal of
(or premium or Make-Whole Amount, if any) or interest on
securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Partnership and the Guarantor (with respect to the
Securities of a series which are Guaranteed Securities) covenants that if:
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(1) default is made in the payment of any installment
of interest on any Security of any series and any related
coupon when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal
of (or premium or Make-Whole Amount, if any, on) any Security
of any series at its Maturity,
then the Partnership or the Guarantor (if the Securities of such series are
Guaranteed Securities) will, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Securities of such series and coupons, the
whole amount then due and payable on such Securities and coupons for principal
(and premium or Make-Whole Amount, if any) and interest, with interest upon any
overdue principal (and premium or Make-Whole Amount, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon any overdue
installments of interest at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Partnership or the Guarantor (if the Securities of such
series are Guaranteed Securities) fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Partnership, the Guarantor (if the Securities of
such series are Guaranteed Securities) or any other obligor upon such Securities
of such series and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Partnership, the Guarantor (if
the Securities of such series are Guaranteed Securities) or any other obligor
upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Partnership, the Guarantor (if the Securities are
Guaranteed Securities) or any other obligor upon the Securities or the property
of the Partnership, the Guarantor (if the Securities are Guaranteed Securities)
or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Partnership or the
Guarantor (if the Securities are Guaranteed Securities) for the payment of
overdue principal, premium or Make-Whole Amount, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole
amount, or such lesser amount as may be provided for in the
Securities of such series, of principal (and premium or
Make-Whole Amount, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or
other property payable or deliverable on any such claims and
to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the Holders of the Securities, and it shall not be necessary to make any Holders
of the Securities parties to any such proceedings.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium or Make-Whole
Amount, if any) or interest, upon presentation of the Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
and any predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities and coupons for principal (and
premium or Make-Whole Amount, if any) and interest, in respect
of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any
kind, according to the aggregate amounts due and payable on
such Securities and coupons for principal (and premium or
Make-Whole Amount, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to
the Partnership.
SECTION 507. Limitation on Suits. No Holder of any Security of
any series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with respect
to the Securities of that series;
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(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 indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of the
Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium or Make- Whole Amount, if any, and Interest. Notwithstanding
any other provision in this Indenture, the Holder of any Security or coupon
shall have the right which is absolute and unconditional to receive payment of
the principal of (and premium or Make-Whole Amount, if any) and (subject to
Sections 305 and 307) interest on such Security or payment of such coupon on the
respective due dates expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, the Partnership, the
Guarantor (if the Security is a Guaranteed Security), the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
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SECTION 512. Control by Holders of Securities. The Holders of
not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be unduly prejudicial to
the Holders of Securities of such series not joining therein.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by
the Trustee and which is not inconsistent with such direction
by Holders.
SECTION 513. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series and any
related coupons waive any past default hereunder with respect to such series and
its consequences, except a default
(1) in the payment of the principal of (or premium or
Make-Whole Amount, if any) or interest on any Security of such
series or any related coupons, or
(2) in respect of a covenant or provision hereof
which under Article Nine cannot be modified or amended without
the consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The
Partnership and the Guarantor covenants, in each case, (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any usury, stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the
Partnership and the Guarantor each (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of 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 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 or Make-Whole
Amount, if any) or interest on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
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ARTICLE SIX - THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided in
TIA Section 313(c), notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal of (or premium
or Make-Whole Amount, if any) or interest on any Security of such series, or in
the payment of any sinking fund installment with respect to the Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of the Securities
and coupons of such series; and provided further that in the case of any default
or breach of the character specified in Section 501(4) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to the Securities
of such series.
SECTION 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
coupon or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Partnership
mentioned herein shall be sufficiently evidenced by a Company
Request or Company Order or of the Guarantor mentioned herein
shall be sufficiently evidenced by a Guarantor Request or
Guarantor Order (in each case, other than delivery of any
Security, together with any coupons appertaining thereto, to
the Trustee for authentication and delivery pursuant to
Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Trustees may be
sufficiently evidenced by a Board Resolution or of the
Guarantor's Board of Trustees may be sufficiently evidenced by
a Guarantor's 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 or, if such
matter pertains to the Guarantor, a Guarantor's Officers'
Certificate;
(4) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(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 related coupons pursuant to
this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to the
Trustee 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, coupon or other paper or document, unless
requested in writing so to do by the Holders of not less than
a majority in aggregate principal
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amount of the Outstanding Securities of any series; provided
that, if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses
or liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the
Holders or, if paid by the Trustee, shall be repaid by the
Holders upon demand. 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
Partnership and the Guarantor (if Guaranteed Securities are
outstanding), relevant to the facts or matters that are the
subject of its inquiry, personally or by agent or attorney;
(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; and
(8) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and reasonably
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
Except during the continuance of an Event of Default, the
Trustee undertakes to perform 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.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Partnership or the Guarantor (if such Securities are
Guaranteed Securities), as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Partnership of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Partnership or the Guarantor, in its individual or any other capacity, may
become the owner or pledgee of Securities and coupons and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Partnership or the
Guarantor with the same rights it would have if it were not Trustee, Paying
Agent, Security Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Partnership
or the Guarantor.
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SECTION 606. Compensation and Reimbursement. The Partnership
and the Guarantor agrees in each case:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor 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 reasonable expenses and disbursements of
its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against, any
loss, liability or expense 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 of defending itself against
any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(7) or Section
501(8), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
As security for the performance of the obligations of the
Partnership and the Guarantor under this Section, the Trustee shall have a lien
prior to the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of (or
premium or Make-Whole Amount, if any) or interest on particular Securities or
any coupons. The provisions of this Section shall survive the termination of
this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests. There shall at all times be a Trustee hereunder which
shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or the
requirements of Federal, state, territorial or District of Columbia supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article. Neither the
Partnership nor any Person directly or indirectly controlling, controlled by, or
under common control with the Partnership shall serve as Trustee.
SECTION 608. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Partnership and the Guarantor (if the Securities of such series are Guaranteed
Securities). If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Partnership and the Guarantor (if the Securities of such series are Guaranteed
Securities).
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request
therefor by the Partnership, the Guarantor (if the Securities
of such series are Guaranteed Securities) or by any Holder of
a Security who has been a bona fide Holder of a Security for
at least six months, or
(2) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after written request
therefor by the Partnership, the Guarantor (if the Securities
of such series are Guaranteed Securities) or by any Holder of
a Security who has been a bona fide Holder of a Security for
at least six months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Partnership or the Guarantor (if the Securities
of such series are Guaranteed Securities) by or pursuant to a Board Resolution
or a Guarantor Board Resolution, as the case may be, may remove the Trustee and
appoint a successor Trustee with respect to all Securities, or (ii) subject to
TIA Section 315(e), any Holder of a Security who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Partnership
or the Guarantor (if the Securities of such series are Guaranteed Securities),
by or pursuant to a Board Resolution or a Guarantor Board Resolution, as the
case may be, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Partnership, the
Guarantor (if the Securities of such series are Guaranteed Securities) and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Partnership and the Guarantor (if the Securities of such series
are Guaranteed Securities). If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Partnership and the
Guarantor (if the Securities of such series are Guaranteed Securities) or the
Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(f) The Partnership shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
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SECTION 609. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Partnership, the Guarantor (if the Securities are Guaranteed
Securities) and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Partnership, the
Guarantor (if the Securities are Guaranteed Securities) or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Partnership, the Guarantor (if the Securities of such series are Guaranteed
Securities), the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof, wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Partnership, the Guarantor (if the Securities of such series are Guaranteed
Securities) or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Partnership and the Guarantor (if the Securities of such series are Guaranteed
Securities) shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section 609, as the case may
be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
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authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Partnership and the Guarantor (if the Securities of such series
are Guaranteed Securities). Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Partnership and the Guarantor (if the Securities of such series are Guaranteed
Securities) and shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any state or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
Federal or state authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Partnership and the Guarantor (if the Securities of such
series are Guaranteed Securities). The Trustee for any series of Securities may
at any time terminate the agency of an Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Partnership and
the Guarantor (if the Securities of such series are Guaranteed Securities). Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee for such series may appoint a
successor Authenticating Agent which shall be acceptable to the Partnership and
the Guarantor (if the Securities of such series are Guaranteed Securities) and
shall give notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve in the manner set
forth in Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Partnership and the Guarantor (if the Securities are
Guaranteed Securities) agree to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
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If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[___________________]
Dated: ____________ as Trustee
By:___________________________ By:_______________________
as Authenticating Agent
Dated: ____________ By:______________________
Authorized Signatory
SECTION 612. Certain Duties and Responsibilities of the
Trustee. (a) With respect to the Securities of any series, except during the
continuance of an Event of Default with respect to the Securities of such
series:
(1) 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
(2) 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, but shall not be under any
duty to verify the contents or accuracy thereof.
(b) In case an Event of Default with respect to the Securities
of any series has occurred and is continuing, the Trustee shall, with respect to
Securities of such series, 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 man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) 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:
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) 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;
(3) 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
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
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exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such
series; and
(4) 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.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 612.
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE,
PARTNERSHIP AND GUARANTOR
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same, agrees
with the Partnership, the Guarantor (if the Securities are Guaranteed
Securities) and the Trustee that none of the Partnership, the Guarantor (if the
Securities are Guaranteed Securities) nor the Trustee nor any Authenticating
Agent nor any Paying Agent nor any Security Registrar shall be held accountable
by reason of the disclosure of any information as to the names and addresses of
the Holders of Securities in accordance with TIA Section 312, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under TIA Section 312(b).
SECTION 702. Reports by Trustee. The Trustee shall transmit to
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required by TIA Section 313 at the times and in the manner provided by
the TIA, which shall initially be not less than every twelve months commencing
on [_________________], 1998. A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each stock exchange,
if any, upon which any Securities are listed, with the Commission and with the
Partnership. The Partnership will notify the Trustee when any Securities are
listed on any stock exchange.
SECTION 703. Reports by Partnership and Guarantor. The
Partnership and the Guarantor (if the Securities are Guaranteed Securities)
will:
(1) file with the Trustee, within 15 days after the
Partnership or the Guarantor, as the case may be, 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 Partnership or the Guarantor, as the case
may be, 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 Partnership or the Guarantor, as the case
may be, is not required to file information, documents or
reports pursuant to either of such Sections, then it will file
with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic
information, documents and reports which may be required
pursuant to Section 13 of the 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 Partnership or
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the Guarantor, as the case may be, with the conditions and
covenants of this Indenture as may be required from time to
time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities,
within 30 days after the filing thereof with the Trustee, in
the manner and to the extent provided in TIA Section 313(c),
such summaries of any information, documents and reports
required to be filed by the Partnership or the Guarantor, as
the case may be, pursuant to paragraphs (1) and (2) of this
Section as may be required by rules and regulations prescribed
from time to time by the Commission.
SECTION 704. Partnership to Furnish Trustee Names and
Addresses of Holders. The Partnership will furnish or cause to be furnished to
the Trustee:
(a) semiannually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities,
semiannually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Partnership of any such request, a list
of similar form and content as of a date not more than 15 days prior to the time
such list is furnished, provided, however, that, so long as the Trustee is the
Security Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Partnership and
Sales, Leases and Conveyances Permitted Subject to Certain Conditions. The
Partnership may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any other corporation, provided that
in any such case, (1) either the Partnership shall be the continuing
corporation, or the successor corporation shall be a corporation organized and
existing under the laws of the United States or a State thereof and such
successor corporation shall expressly assume the due and punctual payment of the
principal of (and premium or Make-Whole Amount, if any) and any interest on all
of the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Partnership by supplemental indenture,
complying with Article Nine hereof, satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation and (2) immediately after giving
effect to such transaction and treating any indebtedness which becomes an
obligation of the Partnership or any Subsidiary as a result thereof as having
been incurred by the Partnership or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or the lapse
of time, or both, would become an Event of Default, shall have occurred and be
continuing.
SECTION 802. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Partnership, with the same effect as if it
had been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Partnership, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Partnership and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Partnership, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Partnership to the Trustee for authentication, and any Securities which
such successor corporation thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this
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Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor corporation,
complies with the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
SECTION 804. Consolidations and Mergers of Guarantor and
Sales, Leases and Conveyances Permitted Subject to Certain Conditions. The
Guarantor may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any other corporation, provided that
in any such case, (1) either the Guarantor shall be the continuing corporation,
or the successor corporation shall be a corporation organized and existing under
the laws of the United States or a State thereof and such successor corporation
shall expressly assume the obligation of the Guarantor under the Guarantee, if
any, and observance of all of the covenants and conditions of this Indenture to
be performed by the Guarantor by supplemental indenture, complying with Article
Nine hereof, satisfactory to the Trustee, executed and delivered to the Trustee
by such corporation and (2) immediately after giving effect to such transaction
and treating the obligation of the Guarantor under the Guarantee, if any, which
becomes an obligation of the Guarantor as a result thereof as having been
incurred by the Guarantor at the time of such transaction, no Event of Default,
and no event which, after notice or the lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing.
SECTION 805. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Guarantor, with the same effect as if it
had been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 806. Guarantor's Officers' Certificate and Opinion of
Counsel. Any consolidation, merger, sale, lease or conveyance permitted under
Section 801 is also subject to the condition that the Trustee receive a
Guarantor's Officers' Certificate and an Opinion of Counsel to the effect that
any such consolidation, merger, sale, lease or conveyance, and the assumption by
any successor corporation, complies with the provisions of this Article and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
ARTICLE NINE - SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders of Securities or coupons, the
Partnership and the Guarantor, when authorized by or pursuant to a Board
Resolution or a Guarantor's Resolution, as the case may be, 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 Partnership or the Guarantor and the assumption by any
such successor of the covenants of the Partnership or the
Guarantor contained herein and in the Securities; or
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(2) to add to the covenants of the Partnership or the
Guarantor 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 Partnership or the Guarantor; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and
if such Events of Default are to be for the benefit of less
than all series of Securities, stating that such Events of
Default are expressly being included solely for the benefit of
such series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may
provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case
of other defaults) or may provide for an immediate enforcement
upon such default or may limit the remedies available to the
Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or
those series of Securities to which such additional Events of
Default apply to waive such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable
as to principal, to change or eliminate any restrictions on
the payment of principal of or premium or Make-Whole Amount,
if any, or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not
adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
shall become effective only when there is no Security
Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series and any related coupons as permitted by Sections
201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other
provisions with respect to matters or questions arising under
this Indenture which shall not be inconsistent with the
provisions of this Indenture, provided such provisions shall
not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any
material respect; or
(10) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Securities pursuant to Sections 401, 1402 and 1403; provided
that any such action shall not adversely affect the interests
of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material
respect.
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SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Partnership, the Guarantor (if such Securities are
Guaranteed Securities) and the Trustee, the Partnership, when authorized by or
pursuant to a Board Resolution, the Guarantor, when authorized pursuant to a
Guarantor's Board Resolution, if applicable, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of
(or premium or Make-Whole Amount, if any, on) or any
installment of principal of or interest on, any Security; or
reduce the principal amount thereof or the rate or amount of
interest thereon, or any premium or Make-Whole Amount payable
upon the redemption thereof, 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 the amount thereof
provable in bankruptcy pursuant to Section 504, or adversely
affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite
currency or currencies in which, any Security or any premium
or Make-Whole Amount or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in
the case of redemption or repayment at the option of the
Holder, on or after the Redemption Date or the Repayment Date,
as the case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver with
respect to such series (or compliance with certain provisions
of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting, or
(3) modify or effect in any manner adverse to the
Holders the terms and conditions of the obligations of the
Guarantor in respect of the due and punctual payments of
principal of, or any premium or interest on or any sinking
fund requirements or Additional Amounts with respect to,
Guaranteed Securities, or
(4) modify any of the provisions of this Section,
Section 513 or Section 1009, except to increase the required
percentage to effect such action or to provide that certain
other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding
Security affected thereby, 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 902 and Section 1009, or
the deletion of this proviso, in accordance with the
requirements of Sections 609(b) and 901(11).
It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
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.
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SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Partnership
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Partnership, to any such supplemental
indenture may be prepared and executed by the Partnership and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN - COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole
Amount, if any; and Interest. The Partnership covenants and agrees for the
benefit of the Holders of each series of Securities that it will duly and
punctually pay the principal of (and premium or Make-Whole Amount, if any) and
interest on the Securities of that series in accordance with the terms of such
series of Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 301 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature. Unless otherwise specified with respect to Securities of any
series pursuant to Section 301, at the option of the Partnership, all payments
of principal may be paid by check to the registered Holder of the Registered
Security or other person entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities
of a series are issuable only as Registered Securities, the Partnership or the
Guarantor (if any Guaranteed Securities are outstanding) shall maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Partnership or the
Guarantor (if any Guaranteed Securities are outstanding) in respect of the
Securities of that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Partnership or the Guarantor (if
any Guaranteed Securities are outstanding) will maintain: (A) in the Borough of
Manhattan, The City of New York, an office or agency where any Registered
Securities of that series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange, where
notices and demands to or upon the Partnership or the Guarantor (if any
Guaranteed Securities are outstanding) in respect of the Securities of that
series and this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise); (B)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series which is located outside the United States, an office or agency
where Securities of that series and related coupons may be presented and
surrendered for payment; provided, however, that if the Securities of that
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series are listed on any stock exchange located outside the United States and
such stock exchange shall so require, the Partnership or the Guarantor (if any
Guaranteed Securities are outstanding) will maintain a Paying Agent for the
Securities of that series in any required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange; and (C) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the
Partnership or the Guarantor (if any Guaranteed Securities are outstanding) in
respect of the Securities of that series and this Indenture may be served. The
Partnership or the Guarantor (if any Guaranteed Securities are outstanding) will
give prompt written notice to the Trustee of the location, and any change in the
location, of each such office or agency. If at any time the Partnership or the
Guarantor (if any Guaranteed Securities are outstanding) shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment at the offices specified in the Security, in London,
England, and the Partnership and the Guarantor each hereby appoints the same as
its agent to receive such respective presentations, surrenders, notices and
demands, and the Partnership and the Guarantor each hereby appoints the Trustee
its agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or Make-Whole Amount
or interest on Bearer Securities shall be made at any office or agency of the
Partnership in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States; provided, however, that, if the Securities of a series are payable in
Dollars, payment of principal of and any premium or Make-Whole Amount and
interest on any Bearer Security shall be made at the office of the Partnership's
Paying Agent in the Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium or Make-Whole
Amount, or interest, as the case may be, at all offices or agencies outside the
United States maintained for the purpose by the Partnership in accordance with
this Indenture, is illegal or effectively precluded by exchange controls or
other similar restrictions.
The Partnership or the Guarantor (if any Guaranteed Securities
are outstanding) may 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 of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Partnership of its obligation to maintain an
office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Partnership or the Guarantor (if
any Guaranteed Securities are outstanding) will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Partnership and the Guarantor hereby designates as a Place of
Payment for each series of Securities the office or agency of the Partnership in
the Borough of Manhattan, The City of New York, and initially appoints the
Trustee at its Corporate Trust Office as Paying Agent in such city and as its
agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency,
or so long as it is required under any other provision of the Indenture, then
the Partnership will maintain with respect to each such series of Securities, or
as so required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in
Trust. If the Partnership shall at any time act as its own Paying Agent with
respect to any series of any Securities and any related coupons, it will, on or
before each due date of the principal of (and premium or Make-Whole Amount, if
any), or interest on any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum in the currency or
currencies, currency unit or units or composite currency or currencies in which
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the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal (and premium or Make-Whole Amount, if any) or interest 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 Partnership shall have one or more Paying Agents
for any series of Securities and any related coupons, it will, on or before each
due date of the principal of (and premium or Make-Whole Amount, if any), or
interest on any Securities of that series, deposit with a Paying Agent a sum (in
the currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the principal
(and premium or Make-Whole Amount, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or Make-Whole Amount, if any, or interest and (unless such Paying Agent
is the Trustee) the Partnership will promptly notify the Trustee of its action
or failure so to act.
The Partnership 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
principal of (and premium or Make- Whole Amount, if any) or
interest on Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Partnership or the Guarantor (or any other obligor upon the
Securities) in the making of any such payment of principal
(and premium or Make-Whole Amount, if any) or interest on 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 Partnership or the Guarantor (with respect to Securities
that are Guaranteed Securities) 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 or Guarantor Order, as the case may be, direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Partnership 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 Partnership or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such sums.
Except as otherwise provided in the Securities of any series,
any money deposited with the Trustee or any Paying Agent, or then held by the
Partnership, in trust for the payment of the principal of (and premium or
Make-Whole Amount, if any) or interest on any Security of any series and
remaining unclaimed for two years after such principal (and premium or
Make-Whole Amount, if any) or interest has become due and payable shall be paid
to the Partnership upon Partnership Request (or if deposited by the Guarantor,
paid to the Guarantor upon Guarantor Request) or (if then held by the
Partnership) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Partnership or the Guarantor (if the Securities are Guaranteed Securities) for
payment of such principal of (and premium or Make-Whole Amount, if any) or
interest on any Security, without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Partnership 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 Partnership cause to be published once, in
an Authorized Newspaper, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Partnership or the Guarantor, as the case may be.
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SECTION 1004. Existence. Subject to Article Eight, the
Partnership and the Guarantor (if any Guaranteed Securities are outstanding)
will do or cause to be done all things necessary to preserve and keep in full
force and effect their respective corporate existence, all material rights (by
articles of incorporation, by-laws and statute) and material franchises;
provided, however, that neither the Partnership nor the Guarantor shall be
required to preserve any such right or franchise if the Partnership or the
Guarantor, as the case may be, shall determine that the preservation thereof is
no longer desirable in the conduct of its business.
SECTION 1005. Maintenance of Properties. The Partnership will
cause all of its material properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Partnership
may be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that the
Partnership and its Subsidiaries shall not be prevented from selling or
otherwise disposing of their properties for value in the ordinary course of
business.
SECTION 1006. Insurance. The Partnership will cause each of
its and its Subsidiaries' insurable properties to be insured against loss or
damage in an amount at least equal to their then full insurable value with
insurers of recognized responsibility.
SECTION 1007. Payment of Taxes and Other Claims. The
Partnership and the Guarantor (if any Guaranteed Securities are outstanding)
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 them or any Subsidiary or upon the income, profits or property of
the Partnership, the Guarantor or any Subsidiary, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien upon
the property of the Partnership, the Guarantor or any Subsidiary; provided,
however, that neither the Partnership nor the Guarantor shall be required to pay
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings.
SECTION 1008. Statement as to Compliance. The Partnership and
the Guarantor (if any Guaranteed Securities are outstanding) will deliver to the
Trustee, within 120 days after the end of each fiscal year, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Partnership's or the
Guarantor's, as the case may be, compliance with all conditions and covenants
under this Indenture and, in the event of any noncompliance, specifying such
noncompliance and the nature and status thereof. For purposes of this Section
1008, such compliance shall be determined without regard to any period of grace
or requirement of notice under this Indenture.
SECTION 1009. Waiver of Certain Covenants. The Partnership and
the Guarantor (if any Guaranteed Securities are outstanding) may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 1004 to 1009, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Partnership and the Guarantor, as the
case may be, and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
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ARTICLE ELEVEN - REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The
election of the Partnership to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of the
Partnership of less than all of the Securities of any series, the Partnership
shall, at least 45 days prior to the giving of the notice of redemption in
Section 1104 (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Partnership shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series issued on the same day
with the same terms are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series issued on such date with
the same terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Partnership and the
Security Registrar (if other than itself) in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall
be given in the manner provided in Section 106, not less than 30 days nor more
than 60 days prior to the Redemption Date, unless a shorter period is specified
by the terms of such series established pursuant to Section 301, to each Holder
of Securities to be redeemed, but failure to give such notice in the manner
herein provided to the Holder of any Security designated for redemption as a
whole or in part, or any defect in the notice to any such Holder, shall not
affect the validity of the proceedings for the redemption of any other such
Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amount) of the
particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender of such
Security, the holder will receive, without a charge, a new
Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
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(5) that on the Redemption Date the Redemption Price
and accrued interest to the Redemption Date payable as
provided in Section 1106, if any, will become due and payable
upon each such Security, or the portion thereof, to be
redeemed and, if applicable, that interest thereon shall cease
to accrue on and after said date,
(6) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with all
coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if
such is the case,
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing
subsequent to the date fixed for redemption or the amount of
any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to
the Partnership, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are not
to be redeemed, and if such Bearer Securities may be exchanged
for Registered Securities not subject to redemption on this
Redemption Date pursuant to Section 305 or otherwise, the last
date, as determined by the Partnership, on which such
exchanges may be made, and
(10) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed at the
election of the Partnership shall be given by the Partnership
or, at the Partnership's request, by the Trustee in the name
and at the expense of the Partnership.
SECTION 1105. Deposit of Redemption Price. On or prior to any
Redemption Date, the Partnership shall deposit with the Trustee or with a Paying
Agent (or, if the Partnership is acting as its own Paying Agent, which it may
not do in the case of a sinking fund payment under Article Twelve, segregate and
hold in trust as provided in Section 1003) an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay on
the Redemption Date the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Partnership shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Partnership at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
that installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor
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Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Partnership and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium or Make-Whole
Amount, if any) shall, until paid, bear interest from the Redemption Date at the
rate borne by the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Partnership or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Partnership
and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Partnership shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge a
new Security or Securities of the same series, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Security so surrendered. If a
Global Security is so surrendered, the Partnership shall execute and the Trustee
shall authenticate and deliver to the depository, without service charge, a new
Global Security 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 such Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. The Partnership may, in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of a series, (1)
deliver Outstanding Securities of such series (other than any previously called
for redemption) together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto and (2) apply as a credit
Securities of such series which have been redeemed either at the election of the
Partnership pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, as provided for by the terms of such Securities, or which have
otherwise been acquired by the Partnership; provided that such Securities so
delivered or applied as a credit have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
applicable Redemption Price specified in such
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Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Partnership will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such Officers'
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Partnership shall thereupon be
obligated to pay the amount therein specified. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Partnership in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities, if any,
and (except as otherwise specified by the terms of such series established
pursuant to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at a price equal to the principal amount thereof, together with interest,
if any, thereon accrued to the Repayment Date specified in or pursuant to the
terms of such Securities. The Partnership covenants that on or prior to the
Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if
the Partnership is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 1003) an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the principal
(or, if so provided by the terms of the Securities of any series, a percentage
of the principal) of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof, as
the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. In order for
any Security to be repaid at the option of the Holder, the Trustee must receive
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places of which the Partnership shall from time to time
notify the Holders of such Securities) not earlier than 60 days nor later than
30 days prior to the Repayment Date (1) the Security so providing for such
repayment together with the "Option to Elect Repayment" form on the reverse
thereof duly completed by the Holder (or by the Holder's attorney duly
authorized in writing) or (2) a telegram, telex, facsimile transmission or a
letter from a member of a national securities exchange, or the National
Association of Securities Dealers, Inc. ("NASD"), or a commercial bank or trust
company in the United States setting forth the name of the Holder of the
Security, the principal amount of the Security, the principal amount of the
Security to be repaid, the CUSIP number, if any, or a description of the tenor
and terms of the Security, a statement that the option to elect repayment is
being exercised thereby and a guarantee that the Security to be repaid, together
with the duly completed form entitled "Option to Elect Repayment" on the reverse
of the Security, will be received by the Trustee not later than the fifth
Business Day after the date of such telegram, telex, facsimile transmission or
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letter; provided, however, that such telegram, telex, facsimile transmission or
letter shall only be effective if such Security and form duly completed are
received by the Trustee by such fifth Business Day. If less than the entire
principal amount of such Security is to be repaid in accordance with the terms
of such Security, the principal amount of such Security to be repaid, in
increments of the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security surrendered that
is not to be repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not be repaid in
part if, following such repayment, the unpaid principal amount of such Security
would be less than the minimum authorized denomination of Securities of the
series of which such Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at the option of
the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Partnership.
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable. If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Partnership on the Repayment
Date therein specified, and on and after such Repayment Date (unless the
Partnership shall default in the payment of such Securities on such Repayment
Date) such Securities shall, if the same were interest-bearing, cease to bear
interest and the coupons for such interest appertaining to any Bearer Securities
so to be repaid, except to the extent provided below, shall be void. Upon
surrender of any such Security for repayment in accordance with such provisions,
together with all coupons, if any, appertaining thereto maturing after the
Repayment Date, the principal amount of such Security so to be repaid shall be
paid by the Partnership, together with accrued interest, if any, to the
Repayment Date; provided, however, that coupons whose Stated Maturity is on or
prior to the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest thereon,
unless the Partnership shall default in the payment thereof) to the Holders of
such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Partnership and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Partnership shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Partnership, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
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ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article: Partnership's Option
to Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301,
provision is made for either or both of (a) defeasance of the Securities of or
within a series under Section 1402 or (b) covenant defeasance of the Securities
of or within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Partnership may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. Defeasance and Discharge. Upon the Partnership's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, each of the Partnership and the Guarantor (if
the Securities of such series are Guaranteed Securities) shall be deemed to have
been discharged from its obligations with respect to such Outstanding Securities
and any coupons appertaining thereto and under the Guarantee in respect thereof
(if applicable, respectively) on the date the conditions set forth in Section
1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Partnership shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any coupons appertaining thereto, and the Guarantee in respect thereof (if
the Securities of such series are Guaranteed Securities), which shall thereafter
be deemed to be "Outstanding" only for the purposes of Section 1405 and the
other Sections of this Indenture referred to in clauses (A) and (B) below, and
to have satisfied all of its other obligations under such Securities and any
coupons appertaining thereto, and the Guarantee in respect thereof (if the
Securities of such series are Guaranteed Securities), and this Indenture insofar
as such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Partnership and the Guarantor (if the Securities
of such series are Guaranteed Securities), shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any coupons appertaining thereto to receive, solely
from the trust fund described in Section 1404 and as more fully set forth in
such Section, payments in respect of the principal of (and premium or Make-Whole
Amount, if any) and interest, if any, on such Securities and any coupons
appertaining thereto when such payments are due, (B) the Partnership's
obligations with respect to such Securities under Sections 305, 306, 1002 and
1003, (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article. Subject to compliance with this Article
Fourteen, the Partnership may exercise its option under this Section
notwithstanding the prior exercise of its option under Section 1403 with respect
to such Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Partnership's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, each of the Partnership and the Guarantor (if
the Securities of such series are Guaranteed Securities) shall be released from
its obligations under Sections 1004 to 1009, inclusive, and, if specified
pursuant to Section 301, its obligations under any other covenant contained
herein or in any indenture supplemental hereto, with respect to such Outstanding
Securities and any coupons appertaining thereto, and the Guarantee in respect
thereof (if the Securities of such series are Guaranteed Securities), on and
after the date the conditions set forth in Section 1404 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Sections 1004 to 1009,
inclusive, or such other covenant, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities and any coupons
appertaining thereto, the Partnership and the Guarantor (if applicable), may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an Event
of Default under Section 501(4) or 501(8) or otherwise, as the case may be, but,
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except as specified above, the remainder of this Indenture and such Securities
and any coupons appertaining thereto and the Guarantee in respect thereof (if
the Securities of such series are Guaranteed Securities) shall be unaffected
thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402 or Section
1403 to any Outstanding Securities of or within a series and any coupons
appertaining thereto and the Guarantee in respect thereof (if the Securities of
such series are Guaranteed Securities):
(a) The Partnership or the Guarantor (if the Securities of
such series are Guaranteed Securities) shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the provisions of
this Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
coupons appertaining thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any coupons appertaining thereto are
then specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and coupons appertaining thereto (determined on
the basis of the currency, currencies or currency unit in which such Securities
and coupons appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than the
due date of any payment of principal of (and premium or Make-Whole Amount, if
any) and interest, if any, on such Securities and any coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any case, in an
amount, sufficient, without consideration of any reinvestment of such principal
and interest, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, (i) the principal of (and
premium or Make-Whole Amount, if any) and interest, if any, on such Outstanding
Securities and any coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest and (ii) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding Securities
and any coupons appertaining thereto on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of such
Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Partnership or the
Guarantor (if the Securities are Guaranteed Securities) is a party or by which
it is bound.
(c) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 501(6) and 501(7) are
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the
Partnership or the Guarantor (if the Securities are Guaranteed Securities) shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Partnership or the Guarantor (if the Securities are Guaranteed Securities) has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred.
(e) In the case of an election under Section 1403, the
Partnership or the Guarantor (if the Securities of such series are Guaranteed
Securities) shall have delivered to the Trustee an Opinion of Counsel to the
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effect that the Holders of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not occurred.
(f) The Partnership or the Guarantor (if the Securities of
such series are Guaranteed Securities) shall have delivered to the Trustee an
Officers' Certificate or a Guarantor's Officers' Certificate, as the case may
be, and an Opinion of Counsel, each stating that all conditions precedent to the
defeasance under Section 1402 or the covenant defeasance under Section 1403 (as
the case may be) have been complied with and an Opinion of Counsel to the effect
that either (i) as a result of a deposit pursuant to subsection (a) above and
the related exercise of the Partnership's option under Section 1402 or Section
1403 (as the case may be), registration is not required under the Investment
Company Act of 1940, as amended, by the Partnership, with respect to the trust
funds representing such deposit or by the Trustee for such trust funds or (ii)
all necessary registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Partnership or the Guarantor (if the Securities of such series are
Guaranteed Securities) in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the
last paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Partnership acting as its own, or the Guarantor acting as, Paying
Agent) as the Trustee may determine, to the Holders of such Securities and any
coupons appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium or Make-Whole Amount, if any) and interest,
but such money need not be segregated from other funds except to the extent
required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section 1404(a) has
been made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 301 or the terms of
such Security to receive payment in a currency or currency unit other than that
in which the deposit pursuant to Section 1404(a) has been made in respect of
such Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium or Make-Whole
Amount, if any), and interest, if any, on such Security as the same becomes due
out of the proceeds yielded by converting (from time to time as specified below
in the case of any such election) the amount or other property deposited in
respect of such Security into the currency or currency unit in which such
Security becomes payable as a result of such election or Conversion Event based
on the applicable market exchange rate for such currency or currency unit in
effect on the second Business Day prior to each payment date, except, with
respect to a Conversion Event, for such currency or currency unit in effect (as
nearly as feasible) at the time of the Conversion Event.
The Partnership or the Guarantor (if such Securities are
Guaranteed Securities) shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
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Anything in this Article to the contrary notwithstanding,
subject to Section 606, the Trustee shall deliver or pay to the Partnership or
the Guarantor (if such Securities are Guaranteed Securities) from time to time
upon Partnership Request or Guarantor Request, as the case may be, any money or
Government Obligations (or other property and any proceeds therefrom) held by it
as provided in Section 1404 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect a defeasance or covenant
defeasance, as applicable, in accordance with this Article.
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1501, to be held at such time and at such
place as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 20 nor more than 180
days prior to the date fixed for the meeting.
(b) In case at any time the Partnership, pursuant to a Board
Resolution, the Guarantor, pursuant to a Guarantor Board Resolution, or the
Holders of at least 25% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 20 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Partnership, the Guarantor 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
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel, any representatives of the Partnership and its counsel and any
representatives of the Guarantor and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at the reconvening of any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days; at the reconvening of any meeting adjourned or further
adjourned for lack of a quorum, the persons entitled to vote 25% in aggregate
principal amount of the then Outstanding Securities shall constitute a
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quorum for the taking of any action set forth in the notice of the original
meeting. Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 1502(a), except that such notice need be given only once not
less than five days prior to the date on which the meeting is scheduled to be
reconvened.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities represented at such meeting; provided, however, that,
except as limited by the proviso to Section 902, any resolution with respect to
any request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for
such meeting; and
(ii) the principal amount of the Outstanding
Securities of such series that vote in favor of such request,
demand, authorization, direction, notice, consent, waiver or
other action shall be taken into account in determining
whether such request, demand, authorization, direction,
notice, consent, waiver or other action has been made, given
or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Partnership or by Holders of Securities as provided in Section 1502(b), in
which case the Partnership 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.
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(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any Series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
fact, setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Partnership 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 - GUARANTEE
SECTION 1601. Guarantee. The Guarantee set forth in this
Article Sixteen shall only be in effect with respect to Securities of a series
to the extent such Guarantee is made applicable to such series in accordance
with Section 301. The Guarantor hereby unconditionally guarantees to each Holder
of a Guaranteed Security authenticated and delivered by the Trustee the due and
punctual payment of the principal of, any premium and interest on such
Guaranteed Security and the due and punctual payment of the sinking fund
payments (if any) provided for pursuant to the terms of such Guaranteed
Security, when and as the same shall become due and payable, whether at
maturity, by acceleration, redemption, repayment or otherwise, in accordance
with the terms of such Security and of this Indenture. In case of the failure of
the Partnership punctually to pay any such principal, premium, interest or
sinking fund payment, the Guarantor hereby agrees to cause any such payment to
be made punctually when and as the same shall become due and payable, whether at
maturity, upon acceleration, redemption, repayment or otherwise, and as if such
payment were made by the Partnership.
The Guarantor hereby agrees that its obligations hereunder
shall be as principal and not merely as surety, and shall be absolute,
irrevocable and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any Guaranteed Security or this
Indenture, any failure to enforce the provisions of any Guaranteed Security or
this Indenture, or any waiver, modification, consent or indulgence granted with
respect thereto by the Holder of such Guaranteed Security or the Trustee, the
recovery of any judgment against the Partnership or any action to enforce the
same, or any other circumstances which may otherwise constitute a legal or
equitable discharge of a surety or guarantor. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger, insolvency or bankruptcy of the Partnership, any right to
require a proceeding first against the Partnership, protest or notice with
respect to any such Guaranteed Security or the Indebtedness evidenced thereby
and all demands whatsoever, and covenants that this Guarantee will not be
discharged except by payment in full of the principal of, any premium or
interest on, and sinking fund payment
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required with respect to, the Guaranteed Securities and the complete performance
of all other obligations contained in the Guaranteed Securities.
This Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time payment on any Guaranteed
Security, in whole or in part, is rescinded or must otherwise be restored to
Partnership, the Guarantor upon the bankruptcy, liquidation or reorganization of
the Partnership or otherwise.
The Guarantor shall be subrogated to all rights of the Holder
of any Guaranteed Security against the Partnership in respect of any amounts
paid to such Holder by the Guarantor pursuant to the provisions of this
Guarantee; provided, however, that the Guarantor shall not be entitled to
enforce, or to receive any payments arising out of or based upon, such right of
subrogation until the principal of, any premium and interest on, and sinking
fund payments required with respect to, all Guaranteed Securities shall have
been paid in full.
ARTICLE SEVENTEEN - SUBORDINATION OF SECURITIES
SECTION 1701. Agreement to Subordinate. Notwithstanding
anything in this Indenture to the contrary (other than Article Four of this
Indenture), the Partnership and the Guarantor covenants and agrees, and each
Holder of a Security, by his acceptance thereof, likewise covenants and agrees,
that, to the extent and in the manner hereinafter set forth in this Article, the
Indebtedness represented by the Securities and the payment of any Obligations
with respect to each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
SECTION 1702. Payment Over of Proceeds upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or Proceeding, or any
receivership, liquidation, reorganization or other similar case or Proceeding in
connection therewith, relative to the Partnership, the Guarantor (if the
Securities are Guaranteed Securities) or to their respective creditors, as such,
or to its assets, or (b) any liquidation, dissolution or other winding up of the
Partnership or the Guarantor (if the Securities are Guaranteed Securities),
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Partnership or the Guarantor (if the
Securities are Guaranteed Securities), then and in any such event specified in
(a), (b) or (c) above (each such event, if any, herein sometimes referred to as
a "Proceeding")
(1) the holders of Senior Indebtedness shall first be entitled
to receive payment in full of all Obligations due or to become due on or in
respect of all Senior Indebtedness, or provision shall be made for such payment
in cash or cash equivalents or otherwise in a manner satisfactory to the holders
of Senior Indebtedness, before the Holders of the Securities are entitled to
receive any payment or distribution on account of principal of or premium, if
any, or interest on or other Obligations in respect of the Securities or on
account of any purchase, redemption or other acquisition of Securities by the
Partnership, the Guarantor (if the Securities are Guaranteed Securities) or any
Subsidiary (individually and collectively, a "Securities Payment"), and
(2) any payment or distribution of assets of the Partnership
or the Guarantor (if the Securities are Guaranteed Securities) of any kind or
character, whether in cash, property or securities (other than securities of the
Partnership or the Guarantor (if the Securities are Guaranteed Securities) as
reorganized or readjusted, or securities of the Partnership, the Guarantor (if
the Securities are Guaranteed Securities) or any other corporation provided for
by a plan of reorganization or readjustment, the payment of which is
subordinate, at least to the extent provided in this Article Seventeen with
respect to the Securities, to the payment in full, without diminution or
modification by such plan, of all Senior Indebtedness), to which the Holders
would be entitled except for the provisions of this Article Seventeen, shall be
paid by the liquidating trustee or agent or other person making such a payment
or distribution, directly to the holders of Senior Indebtedness) (or their
representative(s) or trustee(s) acting on their behalf), ratably according to
the aggregate amounts remaining unpaid on account of the principal of or
interest on and other amounts due on the Senior Indebtedness held or represented
by each, to the extent necessary to
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make payment in full of all Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness.
In the event that, notwithstanding the foregoing provisions of
this Section 1701, the Trustee or the Holder of any Security shall have received
any payment or distribution of assets of the Partnership or the Guarantor (if
the Securities are Guaranteed Securities) of any kind or character, whether in
cash, property or securities (other than Capital Stock or securities of the
Partnership or the Guarantor (if the Securities are Guaranteed Securities) as
reorganized or readjusted, or securities of the Partnership or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinate, at least to the extent provided in this Article
with respect to the Securities, to the payment in full, without diminution or
modification by such plan, of Senior Indebtedness), before all Senior
Indebtedness is paid in full or payment thereof provided for in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, such payment or distribution shall be held in trust for the
benefit of, and be paid over to, the holders of the Senior Indebtedness
remaining unpaid (or their representative(s) or trustee(s) acting on their
behalf), ratably as aforesaid, for application to the payment of such Senior
Indebtedness until such Senior Indebtedness shall have been paid in full, after
giving effect to any concurrent payment or distribution to the holders of such
Senior Indebtedness.
The consolidation of the Partnership or the Guarantor (if the
Securities are Guaranteed Securities) with, or the merger of the Partnership or
the Guarantor (if the Securities are Guaranteed Securities) into, another Person
or the liquidation or dissolution of the Partnership or the Guarantor (if the
Securities are Guaranteed Securities) following the conveyance or transfer of
all or substantially all of its properties and assets as an entirety to another
Person upon the terms and conditions set forth in Article Eight shall not be
deemed a Proceeding for the purposes of this Section 1702 if the Person formed
by such consolidation or into which the Partnership is merged or the Person
which acquires by conveyance or transfer such properties and assets as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article Eight.
SECTION 1703. No Payment When Senior Indebtedness in Default.
Anything in this Indenture to the contrary notwithstanding, no payment on
account of principal of or redemption of, interest on or other amounts due on
the Securities, and no redemption, purchase, or other acquisition of the
Securities, shall be made by or on behalf of the Partnership or the Guarantor
(if the Securities are Guaranteed Securities)(i) unless full payment of amounts
then due for principal and interest and of all other obligations then due on all
Senior Indebtedness has been made or duly provided for pursuant to the terms of
the instrument governing such Senior Indebtedness, (ii) if, at the time of such
payment, redemption, purchase or other acquisition, or immediately after giving
effect thereto, there shall exist under any Senior Indebtedness, or any
agreement pursuant to which any Senior Indebtedness is issued, any default,
which default shall not have been cured or waived and which default shall have
resulted in the full amount of such Senior Indebtedness being declared due and
payable or (iii) if, at the time of such payment, redemption, purchase or other
acquisition, the Trustee shall have received written notice from the holder or
holders of any Senior Indebtedness or their representative or representatives (a
"Payment Blockage Notice") that there exists under such Senior Indebtedness, or
any agreement pursuant to which such Senior Indebtedness is issued, any default,
which default shall not have been cured or waived, permitting the holders
thereof to declare the full amount of such Senior Indebtedness due and payable,
but only for the period (the "Payment Blockage Period") commencing on the date
of receipt of the Payment Blockage Notice and ending (unless earlier terminated
by notice given to the Trustee by the Holders of such Senior Indebtedness) on
the earlier of (A) the date on which such event of default shall have been cured
or waived or (B) 180 days from the receipt of the Payment Blockage Notice. Upon
termination of a Payment Blockage Period, payments on account of principal of or
interest on the Securities and redemptions, purchases or other acquisitions may
be made by or on behalf of the Partnership. Notwithstanding anything herein to
the contrary, (A) only one Payment Blockage Notice may be given during any
period of 360 consecutive days with respect to the same event of default and any
other events of default on the same issue of Senior Indebtedness existing and
known to the person giving such notice at the time of such notice and (B) no new
Payment Blockage Period may be commenced by the holder or holders of the same
issue of Senior Indebtedness or their representative or representatives during
any period of 360 consecutive days unless all events of default which were
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the object of the immediately preceding Payment Blockage Notice, and any other
event of default on the same issue of Senior Indebtedness existing and known to
the person giving such notice at the time of such notice, have been cured or
waived.
In the event that, notwithstanding the provisions of this
Section 1703, payments are made by or on behalf of the Partnership or the
Guarantor (if the Securities are Guaranteed Securities) in contravention of the
provisions of this Section 1703, such payments shall be held by the Trustee, any
Paying Agent or the Holders, as applicable, in trust for the benefit of, and
shall be paid over to and delivered to, the holders of Senior Indebtedness or
their representative or the trustee under the indenture or other agreement (if
any), pursuant to which any instruments evidencing any Senior Indebtedness may
have been issued, as their respective interests may appear, for application to
the payment of all Senior Indebtedness remaining unpaid to the extent necessary
to pay all Senior Indebtedness in full in accordance with the terms of such
Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
The provisions of this Section shall not apply to any payment
with respect to which Section 1702 would be applicable.
SECTION 1704. Reliance by Senior Indebtedness on Subordination
Provisions. Each Holder of any Security by his acceptance thereof acknowledges
and agrees that the foregoing subordination provisions are, and are intended to
be, an inducement and a consideration for each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness, and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold or in continuing to hold such
Senior Indebtedness.
SECTION 1705. Subrogation to Rights of Holders of Senior
Indebtedness. Subject to the payment in full of all Obligations due or to become
due on or in respect of Senior Indebtedness, or the provision for such payment
in cash or cash equivalents or otherwise in a manner satisfactory to the holders
of Senior Indebtedness, the Holders of the Securities shall be subrogated to the
extent of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article Seventeen to the rights
of the holders of such Senior Indebtedness to receive payments and distributions
of cash, property and securities applicable to the Senior Indebtedness until the
principal of and premium, if any, and interest on the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article Seventeen, and no payments over pursuant to the
provisions of this Article Seventeen to the holders of Senior Indebtedness by
Holders of the Securities or the Trustee, shall, as among the Partnership, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, be deemed to be a payment or distribution by the Partnership or the
Guarantor (if the Securities are Guaranteed Securities) to or on account of the
Senior Indebtedness.
SECTION 1706. Provisions Solely to Define Relative Rights. The
provisions of this Article Seventeen are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as among the Partnership, the Guarantor (if the Securities
are Guaranteed Securities), their respective creditors other than holders of
Senior Indebtedness and the Holders of the Securities, the obligation of the
Partnership and the Guarantor (if the Securities are Guaranteed Securities),
which is absolute and unconditional (and which, subject to the rights under this
Article Seventeen of the holders of Senior Indebtedness, is intended to rank
equally with all other general obligations of the Partnership and the Guarantor
(if the Securities are Guaranteed Securities), to pay to the Holders of the
Securities the principal of and premium, if any, and interest on the Securities
as and when the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights against the Partnership or the
Guarantor (if the Securities are Guaranteed Securities) of the Holders of the
Securities and creditors of the Partnership or the
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Guarantor (if the Securities are Guaranteed Securities) other than the holders
of Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1707. Trustee to Effectuate Subordination. Each Holder
of a Security by his acceptance thereof authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to effectuate,
as between the Holders of the Securities and the holders of Senior Indebtedness,
the subordination provided in this Article Seventeen and appoints the Trustee
his attorney-in-fact for any and all such purposes, including, in the event of
any dissolution, winding up or liquidation or reorganization under any
applicable bankruptcy law of the Partnership or the Guarantor (if the Securities
are Guaranteed Securities) (whether in bankruptcy, insolvency or receivership
Proceedings or otherwise), the timely filing of a claim for the unpaid balance
of such Holder's Securities in the form required in such Proceedings and the
causing of such claim to be approved. If the Trustee does not file a claim or
proof of debt in the form required in such Proceedings prior to 30 days before
the expiration of the time to file such claims or proofs, then the holders of
Senior Indebtedness, jointly, or their representatives shall have the right to
file an appropriate claim for and on behalf of the Holders and to demand, sue
for, collect, receive and receipt for the payments and distributions in respect
of the Securities which are required to be paid or delivered to the holders of
Senior Indebtedness as provided in this Article Seventeen and to take all such
other action in the name of the Holders or otherwise, as such holder of Senior
Indebtedness or representative thereof may determine to be necessary or
appropriate for the enforcement of the provisions of this Article Seventeen.
SECTION 1708. No Waiver of Subordination Provisions. No right
of any present or future holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Partnership or the
Guarantor (if the Securities are Guaranteed Securities) or by any act or failure
to act, in good faith, by any such holder or any representative or trustee
therefor, or by any non-compliance by the Partnership or the Guarantor (if the
Securities are Guaranteed Securities) with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Seventeen or the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness and settle or compromise Senior Indebtedness (which, to
the extent so settled and compromised, shall be deemed to have been paid in full
for all purposes hereof); (iv) apply any amounts received to any liability of
the Partnership owing to holders of Senior Indebtedness; and (v) exercise or
refrain from exercising any rights against the Partnership and any other Person.
SECTION 1709. Notice to Trustee. The Partnership shall give
prompt written notice to the Trustee of any default or event of default with
respect to any Senior Indebtedness or of any fact known to the Partnership which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article Seventeen. Notwithstanding
the provisions of this Article Seventeen or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Partnership or a holder of Senior Indebtedness
or from any representative or trustee acting on their behalf; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 612, shall be entitled in all respects to assume that no such facts
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exist; provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least three Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of and premium, if
any, or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date. Nothing contained
in this Article Seventeen or any other Article of this Indenture or in any of
the Securities shall prevent (a) the Partnership, at any time except during the
pendency of any Proceeding, or under the conditions described in Section 1703,
from making payments at any time in respect of the Securities, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the Securities, or the retention thereof by any
Holder, if the Trustee did not have notice, as provided in this Section 1709,
that such payment would have been prohibited by the provisions of this Article
Seventeen.
Subject to the provisions of Section 612, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a representative
or trustee therefor) to establish that such notice has been given by a holder of
Senior Indebtedness (or a trustee therefor). In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article Seventeen, the Trustee may
request such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person, the extent
to which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article
Seventeen, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 1710. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Partnership
or the Guarantor (if the Securities are Guaranteed Securities) referred to in
this Article Seventeen, the Trustee, subject to the provisions of Section 612,
and the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which any Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Partnership or the Guarantor (if the
Securities are Guaranteed Securities), the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 1711. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness. Nothing contained in this Article Seventeen or
elsewhere in this Indenture, or in any of the Securities, shall prevent the
application by the Trustee of any moneys which were deposited with it hereunder,
prior to its receipt of written notice of facts which would prohibit such
application, for the purpose of the payment of or on account of the principal of
or interest on, the Securities unless, prior to the date on which such
application is made by the Trustee, the Trustee shall be charged with notice
under Section 1709 hereof of the facts which would prohibit the making of such
application.
SECTION 1712. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article Seventeen
with respect to any Senior Indebtedness which may at any time be held by it, to
the same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 606.
SECTION 1713. Article Applicable to Paying Agents. In case at
any time any Paying Agent other than the Trustee shall have been appointed by
the Partnership or the Guarantor (if the Securities are Guaranteed Securities),
and be then acting hereunder, the term "Trustee" as used in this Article
Seventeen shall in such case (unless the context otherwise requires) be
construed as extending to and including such Paying Agent within its meaning as
fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided, however, that
Section 1712 shall not apply to the Partnership, the Guarantor (if the
Securities are Guaranteed Securities) or any Affiliate of the Partnership or the
Guarantor (if the Securities are Guaranteed Securities) if it or such Affiliate
acts as Paying Agent.
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<PAGE>
SIGNATURES AND SEALS
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first above written.
Brandywine Operating Partnership, L.P.
By: Brandywine Realty Trust, its general partner
By: ________________________________
Name:
Title:
Brandywine Realty Trust, as Guarantor
By: ____________________________________
Name:
Title:
______________________________, as Trustee
By: ____________________________________
Name:
Title:
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<PAGE>
ACKNOWLEDGMENT
STATE OF [____________________] )
) ss:
COUNTY OF )
On the [_______________________] 1998, before me personally came
[_________________], to me known, who, being by me duly sworn, did depose and
say that he is the [__________________] of Brandywine Realty Trust, acting in
its capacity as general partner of Brandywine Operating Partnership, L.P., one
of the parties described in and which executed the foregoing instrument, and
that he signed his name thereto by authority of the Board of Trustees of said
Company.
[Notarial Seal]
________________________
Notary Public
Commission Expires
STATE OF [____________________] )
) ss:
COUNTY OF )
On the [____________________________] 1998, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he is the __________________ of Brandywine Realty Trust, one of the parties
described in and which executed the foregoing instrument, and that he signed his
name thereto by authority of the Board of Trustees of said Company.
[Notarial Seal]
_________________________
Notary Public
Commission Expires
<PAGE>
EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SUBORDINATED SECURITY
[Face of Security]
[If the Holder of this Security (as indicated below) is The Depository Trust
Company ("DTC") or a nominee of DTC, this Security is a Global Security and the
following two legends apply:
Unless this Security is presented by an authorized representative of The
Depository Trust Company ("DTC"), 55 Water Street, New York, New York to the
issuer or its agent for registration of transfer, exchange or payment, and such
Security issued is registered in the name of CEDE & CO., or such other name as
requested by an authorized representative of DTC, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since the
registered owner hereof, CEDE & CO., has an interest herein.
Unless and until this Security is exchanged in whole or in part for Securities
in certificated form, this Security may not be transferred except as a whole by
DTC to a nominee thereof or by a nominee thereof to DTC or another nominee of
DTC or by DTC or any such nominee to a successor of DTC or a nominee of such
successor.]
[If this Security is an Original Issue Discount Security, insert -- FOR PURPOSES
OF SECTION 1273 and 1275 OF THE UNITED STATES INTERNAL REVENUE CODE, THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS % OF ITS PRINCIPAL AMOUNT, THE
ISSUE DATE IS , 19 [AND] THE YIELD TO MATURITY IS %. [THE METHOD USED TO
DETERMINE THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL
PERIOD OF _______, 19 TO _________, 19__, IS ___% OF THE PRINCIPAL AMOUNT OF
THIS SECURITY.]
Brandywine Operating Partnership, L.P.
[Designation of Series]
No. __________ $____________
Brandywine Operating Partnership, L.P., a Delaware limited partnership (herein
referred to as the "Partnership," which term includes any successor corporation
under the Indenture referred to on the reverse hereof), for value received,
hereby promises to pay to ______________________________ or registered assigns
the principal sum of _______ Dollars on _____________________ (the "Stated
Maturity Date") [or insert date fixed for earlier redemption (the "Redemption
Date," and together with the Stated Maturity Date with respect to principal
repayable on such date, the "Maturity Date.")]
[If the Security is to bear interest prior to Maturity, insert -- and to pay
interest thereon from ______________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
__________ and _________ in each year (each, an "Interest Payment Date"),
commencing __________, at the rate of __% per annum, until the principal hereof
is paid or duly provided for. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Holder in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the ________ or ______ (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date [at the office or agency of the Partnership maintained for such purpose;
A-1
<PAGE>
provided, however, that such interest may be paid, at the Partnership's option,
by mailing a check to such Holder at its registered address or by transfer of
funds to an account maintained by such Holder within the United States]. Any
such interest not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date, and may be paid to the
Holder in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.]
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at the
[Stated] Maturity Date and in such case the overdue principal of this Security
shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on demand
shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.] The
principal of this Security payable on the Stated Maturity Date [or the principal
of, premium or Make-Whole Amount, if any, and, if the Redemption Date is not an
Interest Payment Date, interest on this Security payable on the Redemption Date]
will be paid against presentation of this Security at the office or agency of
the Partnership maintained for that purpose in ___________________, in such coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts.
Interest payable on this Security on any Interest Payment Date and on the
[Stated] Maturity Date [or Redemption Date, as the case may be,] will include
interest accrued from and including the next preceding Interest Payment Date in
respect of which interest has been paid or duly provided for (or from and
including ____________, if no interest has been paid on this Security) to but
excluding such Interest Payment Date or the [Stated] Maturity Date [or
Redemption Date, as the case may be.] If any Interest Payment Date or the
[Stated] Maturity Date or [Redemption Date] falls on a day that is not a
Business Day, as defined below, principal, premium or Make-Whole Amount, if any,
and/or interest payable with respect to such Interest Payment Date or [Stated]
Maturity Date [or Redemption Date, as the case may be,] will be paid on the next
succeeding Business Day with the same force and effect as if it were paid on the
date such payment was due, and no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date or [Stated] Maturity
Date [or Redemption Date, as the case may be.] "Business Day" means any day,
other than a Saturday or Sunday, on which banks in __________________ are not
required or authorized by law or executive order to close.
A-2
<PAGE>
[If this Security is a Guaranteed Security, insert -- As more fully provided in
the Indenture, all payments of principal, premium, if any, and interest in
respect of this Security are fully and unconditionally guaranteed by Brandywine
Realty Trust, a Maryland business trust (herein referred to as the "Guarantor,"
which term includes any successor corporation referred to in the Indenture).]
[If this Security is a Global Security, insert -- All payments of principal,
premium or Make- Whole Amount, if any, and interest in respect of this Security
will be made by the Partnership in immediately available funds.] Reference is
hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Security shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Partnership has caused this instrument to be duly
executed under its facsimile corporate seal.
Dated: _______________ Brandywine Operating Partnership, L.P.
By: Brandywine Realty Trust
Attest:
_______________________ By: _____________________________
Secretary Name:
Title:
A-3
<PAGE>
[Reverse of Security]
Brandywine Operating Partnership, L.P.
This Security is one of a duly authorized issue of securities of the Partnership
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of _____________, 199_ (herein called the
"Indenture") between the Partnership, the Guarantor (if the Securities are
guaranteed by the Guarantor ("Guaranteed Securities")) and _________________, as
Trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture with respect to the series of which this Security is a
part), to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Partnership, the Guarantor (if the
Securities are guaranteed by the Guarantor "Guaranteed Securities"), the Trustee
and the Holders of the Securities, and of the terms upon which the Securities
are, and are to be, authenticated and delivered. This Security is one of the
duly authorized series of Securities designated on the face hereof
(collectively, the "Securities"), [if applicable, insert -- and the aggregate
principal amount of the Securities to be issued under such series is limited to
$______ (except for Securities authenticated and delivered upon transfer of, or
in exchange for, or in lieu of other Securities).] All terms used in this
Security which are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture. [If
applicable, insert -- The Securities may not be redeemed prior to the Stated
Maturity Date.]
[If applicable, insert -- The Securities are subject to redemption [ (l) (If
applicable, insert -- on _________ in any year commencing with the year ____ and
ending with the year ____ through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, and (2) ] [If
applicable, insert -- at any time [on or after ___________], as a whole or in
part, at the election of the Partnership, at the following Redemption Prices
(expressed as percentages of the principal amount):
If redeemed on or before _______, __% and if redeemed during the 12-month period
beginning _______ of the years indicated at the Redemption Prices indicated
below.
Year Redemption Price Year Redemption Price
- ---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption [If applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date; provided, however, that installments of interest on this
Security whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holder of this Security, or one or more Predecessor Securities,
of record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities are subject to
redemption (1) on _______ in any year commencing with the year ____ and ending
with the year ____ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after _______], as a whole or in part, at the
election of the Partnership, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12- month
period beginning ________ of the years indicated,
A-4
<PAGE>
Year Redemption Price for Redemption Price for
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Sinking fund of the Sinking Fund
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, that installments of interest on this Security whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holder of
this Security, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the
Partnership may not, prior to _______, redeem any Securities as contemplated by
[Clause (2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Partnership (calculated in accordance
with generally accepted financial practice) of less than __% per annum.]
[If applicable, insert -- The sinking fund for the Securities
provides for the redemption on _______ in each year, beginning with the year
____ and ending with the year ____, of [not less than] $_______] [("mandatory
sinking fund") and not more than $_______] aggregate principal amount of the
Securities. [The Securities acquired or redeemed by the Partnership otherwise
than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made in
the [describe order] order in which they become due.]]
Notice of redemption will be given by mail to Holders of
Securities, not less than 30 nor more than 60 days prior to the Redemption Date,
all as provided in the Indenture.
In the event of redemption of this Security in part only, a
new Security or Securities for the unredeemed portion hereof shall be issued in
the name of the Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Partnership, the Guarantor (if the Securities are Guaranteed
Securities) and the rights of the Holders of the Securities under the Indenture
at any time by the Partnership, the Guarantor (if the Securities are Guaranteed
Securities) and the Trustee with the consent of the Holders of not less than a
majority of the aggregate principal amount of all Securities issued under the
Indenture at the time Outstanding and affected thereby. The Indenture also
contains provisions permitting the Holders of not less than a majority of the
aggregate principal amount of the Outstanding Securities, on behalf of the
Holders of all such Securities, to waive compliance by the Partnership with
certain provisions of the Indenture. Furthermore, provisions in the Indenture
permit the Holders of not less than a majority of the aggregate principal
amount, in certain instances, of the Outstanding Securities of any series to
waive, on behalf of all of the Holders of Securities of such series, certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and other Securities issued
upon the registration of transfer hereof or in exchange here for or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
A-5
<PAGE>
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Partnership or the Guarantor (if the Securities are Guaranteed Securities),
which is absolute and unconditional, to pay the principal of (and premium or
Make-Whole Amount, if any) and interest on this Security at the times, places
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein [and herein] set forth, the transfer of this Security is
registrable in the Security Register of the Partnership upon surrender of this
Security for registration of transfer at the office or agency of the Partnership
in any place where the principal of (and premium or Make-Whole Amount, if any)
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Partnership, the
Guarantor (if the Securities are Guaranteed Securities), and the Security
Registrar duly executed by, the Holder hereof or by his attorney duly authorized
in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain
limitations therein [and herein] set forth, this Security is exchangeable for a
like aggregate principal amount of Securities of different authorized
denominations but otherwise having the same terms and conditions, as requested
by the Holder hereof surrendering the same. The Securities of this series are
issuable only in registered form [without coupons] in denominations of $_______
and any integral multiple thereof.
This Security is subordinated to the prior payment in full in
cash of Senior Indebtedness to the extent set forth in Article Seventeen of the
Indenture.
No service charge shall be made for any such registration of
transfer or exchange, but the Partnership may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith, Prior to due presentment of this Security for registration of
transfer, the Partnership, the Guarantor (if the Securities are Guaranteed
Securities), the Trustee and any agent of the Partnership, the Guarantor (if the
Securities are Guaranteed Securities), or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Partnership, the
Guarantor (if the Securities are Guaranteed Securities), the Trustee nor any
such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of
or premium or Make- Whole Amount, if any, or the interest on this Security, or
for any claim based hereon, or otherwise in respect hereof, or based on or in
respect of the Indenture or any indenture supplemental thereto, against any
past, present or future limited partner, shareholder, employee, officer,
director or trustee, as such, of the Partnership, the Guarantor (if the
Securities are Guaranteed Securities), or of any successor, either directly or
through the Partnership, the Guarantor (if the Securities are Guaranteed
Securities), or any successor, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
The Indenture and the Securities 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 entirely in such State.
A-6
<PAGE>
EXHIBIT B
FORMS OF CERTIFICATION
EXHIBIT B-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered] This is to certify that, as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 2.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise Brandywine Operating Partnership, L.P. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
B-1
<PAGE>
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ________, ____
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii)
the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
_____________________________________
(Authorized Signature)
Name:
Title:
B-2
<PAGE>
EXHIBIT B-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S.$] principal amount of the above-captioned Securities (i) is
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("United States person(s)"), (ii) is owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise Brandywine
Operating Partnership, L.P. or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"Possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary Global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof. We understand that this
B-3
<PAGE>
certification is required in connection with certain tax legislation in the
United States. If administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy thereof to any
interested party in such proceedings.
Dated: _______ ____
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of New York,
Brussels Office,] as Operator of the Euroclear
System [CEDEL S.A.]
By: _____________________________________
B-4
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Amendment No. 1 to the Registration Statement on Form S-3
(the "Registration Statement") of Brandywine Realty Trust (the "Company") and
Brandywine Operating Partnership, L.P. (the "Operating Partnership") of: our
report dated June 3, 1998 on the consolidated financial statements of the
Operating Partnership for the period August 22, 1996 to December 31, 1996 and
for the year ended December 31, 1997 and on the consolidated financial
statement's of the Company for the period January 1, 1996 to August 21, 1996 and
for the year ended December 31, 1995, included in the Operating Partnership's
Registration Statement on Form 10, initially filed on June 5, 1998, as amended;
our report dated March 4, 1998, on the consolidated financial statements of the
Company, included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1997; our report dated February 11, 1997 on the combined financial
statements of revenue and certain expenses of Columbia Acquisition Properties
for the year ended December 31, 1996, included in the Company's Form 8-K/A
(No.1) dated February 13, 1997 and Form 8-K/A (No. 2) dated February 24, 1997;
our report dated January 29, 1997 on the combined financial statements of
revenue and certain expenses of Main Street Properties for the year ended
December 31, 1996, included in the Company's Form 8-K/A (No. 1) dated April 29,
1997; our report dated May 29, 1997 on the combined financial statements of
revenue and certain expenses of TA Properties for the year ended December 31,
1996, included in the Company's Form 8-K dated June 9, 1997; our report dated
June 3, 1997 on the combined financial statements of revenue and certain
expenses of Emmes Properties for the year ended December 31, 1996, included in
the Company's Form 8-K dated June 9, 1997; our report dated June 23, 1997 on the
combined financial statements of revenue and certain expenses of 748 & 855
Springdale Drive for the year ended December 31, 1996 included in the Company's
Form 8-K dated June 26, 1997; our report dated July 21, 1997 on the combined
financial statements of revenue and certain expenses of the Green Hills
Properties for the year ended December 31, 1996 included in the Company's Form
10-Q for the quarter ended June 30, 1997; our report dated July 21, 1997 on the
combined financial statements of revenue and certain expenses of the Berwyn Park
Properties for the year ended December 31, 1996, included in the Company's Form
10-Q for the quarter ended June 30, 1997; our report dated August 21, 1997 on
the combined financial statements of revenue and certain expenses of 500 & 501
Office Center Drive for the year ended December 31, 1996 included in the
Company's Form 8-K dated September 10, 1997; our report dated October 15, 1997
on the combined financial statements of revenue and certain expenses of
Metropolitan Industrial Center for the year ended December 31, 1996, included in
the Company's Form 8-K dated October 30, 1997; our report dated October 27, 1997
on the combined financial statements of revenue and certain expenses of Atrium I
for the year ended December 31, 1996, included in the Company's Form 8-K dated
October 30, 1997; our report dated November 14, 1997 on the combined financial
statements of revenue and certain expenses of Scarborough Properties for the
year ended December 31, 1996, included in the Company's Form 8-K dated December
17, 1997; our report dated December 3, 1997 on the financial statement of
revenue and certain expenses of Bala Pointe Office Centre for the year ended
December 15, 1996, included in the Company's Form 8-K dated December 17, 1997;
and our report dated December 13, 1997 on the combined financial statements of
revenue and certain expenses of GMH Properties for the year ended December 31,
1996, included in the Company's Form 8-K dated December 17, 1997; our report
dated January 22, 1998 on the combined financial statement of revenue and
certain expenses of the RREEF Properties for the year ended December 31, 1996,
included in the Company's Form 8-K dated January 27, 1998; our report dated
January 23, 1998 on the financial statement of revenue and certain expenses of
Three Christina Centre for the year ended December 31, 1996, included in the
Company's Form 8-K dated February 23, 1998; our report dated March 24, 1998 on
the financial statement of revenue and certain expenses of Three Christina
Centre for the year ended December 31, 1997, included in the Company's Form 8-K
dated April 16, 1998; our report dated April 15, 1998 on the combined financial
statements of revenue and certain expenses of DKM Properties for the year ended
December 31, 1997, included in the Company's Form 8-K/A dated April 16, 1998;
our report dated April 27, 1998 on the combined financial statements of revenue
and certain expenses of First Commercial Properties for the year ended December
31, 1997, included in the Company's Form 8-K dated May 14, 1998; our report
dated May 1, 1998 on the financial statement of revenue and certain expenses of
One Christina Centre for the year ended December 31, 1997, included in the
Company's Form 8-K dated May 14, 1998;
<PAGE>
and to all references to our Firm included in the Registration Statement.
/s/ ARTHUR ANDERSEN LLP
----------------------
Arthur Andersen LLP
Philadelphia, Pennsylvania
July 16, 1998
<PAGE>
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We hereby consent to the incorporation by reference in the Amendment No. 1
to the registration statement on Form S-3 (the "Registration Statement") of
Brandywine Realty Trust and Brandywine Operating Partnership, L.P. of our report
dated June 19, 1997 included in the Current Report on Form 8-K dated June 26,
1997 of Brandywine Realty Trust and to all references to our firm and our report
dated June 19, 1997 included in the Prospectus in the Registration Statement.
/s/ Zelenkofske, Axelrod & Company, Ltd.
----------------------------------------
Zelenkofske, Axelrod & Company, Ltd.
Jenkintown, Pennsylvania
July 14, 1998
