SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or 12(g) of the
Securities Exchange Act of 1934
HEALTH AND RETIREMENT PROPERTIES TRUST
(Exact name of registrant as specified in its charter)
Maryland 04-6558834
(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
400 Centre Street
Newton, MA 02158
(Address of Principal Executive Office) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
Floating Rate Senior Notes, Series A, due 1999 New York Stock Exchange
Floating Rate Senior Notes, Series B, due 1999 New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
Item 1. Description of Registrant's Securities to be Registered.
A description of the Registrant's Floating Rate Senior
Notes, Series A, Due 1999 ("Series A Notes") to be registered
hereby is contained on pages S-14 through S-20, inclusive, of the
Prospectus Supplement, dated June 29, 1994, and pages 3 through
12, inclusive, of the Prospectus, dated June 6, 1994, which are
filed with the Commission under Rule 424 as a supplement to the
Registrant's registration statement on Form S-3 (no. 33-53173)
and such description is incorporated herein by reference.
A description of the Registrant's Floating Rate Senior
Notes, Series B, Due 1999 (Series B Notes") to be registered
hereby is contained on pages S-14 through S-20, inclusive, of the
Prospectus Supplement, dated June 29, 1994, and pages 3 through
12, inclusive, of the Prospectus, dated June 6, 1994, which are
filed with the Commission under Rule 424 as a supplement to the
Registrant's registration statement on Form S-3 (no. 33-53173)
and such description is incorporated herein by reference.
Item 2. Exhibits.
No. Document Page
1.1 Form of Series A Note.
1.2 Form of Series B Note.
2.1 Indenture dated as of June 1, 1994 between the
Registrant and Shawmut Bank, N.A.
2.2 Supplemental Indenture dated as of June 29, 1994
between the Registrant and Shawmut Bank, N.A., as
Trustee with respect to the the Series A Notes and
the Series B Notes.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has caused this registration
statement to be signed on its behalf by the unedrsigned,
thereunto duly authorized.
HEALTH AND RETIREMENT PROPERTIES
TRUST
Date: July 11, 1994 By:/s/ John G. Murray______________
John G. Murray
Treasurer
_________________________________________________________
HEALTH AND RETIREMENT PROPERTIES TRUST
(f/k/a Health and Rehabilitation Properties Trust)
TO
SHAWMUT BANK, N.A.
Trustee
____________________________________________________________
Indenture
Dated as of June 1, 1994
___________________________________________________________
Unsecured Debt Securities
____________________________________________________________
<PAGE>
TABLE OF CONTENTS
PAGE
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . .1
RECITALS. . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.. . . . . . . . . . . . . . . . 1
"Act" . . . . . . . . . . . . . . . . . . . . . 1
"Additional Amounts". . . . . . . . . . . . . . 2
"Affiliate" . . . . . . . . . . . . . . . . . . 2
"Authenticating Agent". . . . . . . . . . . . . 2
"Authorized Newspaper". . . . . . . . . . . . . 2
"Bearer Security" . . . . . . . . . . . . . . . 2
"Board" . . . . . . . . . . . . . . . . . . . . 2
"Board Resolution". . . . . . . . . . . . . . . 2
"Business Day". . . . . . . . . . . . . . . . . 2
"Capitalized Leases". . . . . . . . . . . . . . 2
"CEDEL" . . . . . . . . . . . . . . . . . . . . 2
"Commission". . . . . . . . . . . . . . . . . . 2
"Company" . . . . . . . . . . . . . . . . . . . 2
"Company Request" . . . . . . . . . . . . . . . 3
"Company Order" . . . . . . . . . . . . . . . . 3
"Conversion Event". . . . . . . . . . . . . . . 3
"Corporate Trust Office". . . . . . . . . . . . 3
"corporation" . . . . . . . . . . . . . . . . . 3
"coupon". . . . . . . . . . . . . . . . . . . . 3
"Debt". . . . . . . . . . . . . . . . . . . . . 3
"Defaulted Interest". . . . . . . . . . . . . . 3
"Dollar" or "$" . . . . . . . . . . . . . . . . 3
"DTC" . . . . . . . . . . . . . . . . . . . . . 3
"ECU" . . . . . . . . . . . . . . . . . . . . . 3
"Euroclear" . . . . . . . . . . . . . . . . . . 3
"European Communities". . . . . . . . . . . . . 3
"European Monetary System". . . . . . . . . . . 3
"Event of Default". . . . . . . . . . . . . . . 3
"Foreign Currency". . . . . . . . . . . . . . . 4
"Funds from Operations" . . . . . . . . . . . . 4
"GAAP". . . . . . . . . . . . . . . . . . . . . 4
"Government Obligations". . . . . . . . . . . . 4
"Holder". . . . . . . . . . . . . . . . . . . . 4
"Indenture" . . . . . . . . . . . . . . . . . . 4
"Indexed Security". . . . . . . . . . . . . . . 4
"interest". . . . . . . . . . . . . . . . . . . 4
"Interest Payment Date" . . . . . . . . . . . . 5
"Maturity". . . . . . . . . . . . . . . . . . . 5
"Officers' Certificate" . . . . . . . . . . . . 5
"Opinion of Counsel". . . . . . . . . . . . . . 5
"Original Issue Discount Security". . . . . . . 5
"Outstanding" . . . . . . . . . . . . . . . . . 5
"Paying Agent". . . . . . . . . . . . . . . . . 6
"Person". . . . . . . . . . . . . . . . . . . . 6
"Place of Payment". . . . . . . . . . . . . . . 6
"Predecessor Security". . . . . . . . . . . . . 6
"Redemption Date" . . . . . . . . . . . . . . . 6
"Redemption Price". . . . . . . . . . . . . . . 6
"Registered Security" . . . . . . . . . . . . . 6
"Regular Record Date" . . . . . . . . . . . . . 6
"Repayment Date". . . . . . . . . . . . . . . . 6
"Responsible Officer" . . . . . . . . . . . . . 6
"Security". . . . . . . . . . . . . . . . . . . 7
"Security Register" . . . . . . . . . . . . . . 7
"Security Registrar". . . . . . . . . . . . . . 7
"Significant Subsidiary". . . . . . . . . . . . 7
"Special Record Date" . . . . . . . . . . . . . 7
"Stated Maturity" . . . . . . . . . . . . . . . 7
"Subsidiary". . . . . . . . . . . . . . . . . . 7
"Trust Indenture Act" or "TIA". . . . . . . . . 7
"Trustee" . . . . . . . . . . . . . . . . . . . 7
"United States" . . . . . . . . . . . . . . . . 7
"United States person". . . . . . . . . . . . . 7
"Yield to Maturity" . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions. . . . 8
SECTION 103. Form of Documents Delivered to Trustee. . . 8
SECTION 104. Acts of Holders.. . . . . . . . . . . . . . 8
SECTION 105. Notices, etc., to Trustee and Company.. . . 10
SECTION 106. Notice to Holders; Waiver.. . . . . . . . . 10
SECTION 107. Effect of Headings and Table of
Contents.. . . . . . . . . . . . . . . . . 11
SECTION 108. Successors and Assigns. . . . . . . . . . . 11
SECTION 109. Separability Clause.. . . . . . . . . . . . 11
SECTION 110. Benefits of Indenture.. . . . . . . . . . . 11
SECTION 111. Governing Law.. . . . . . . . . . . . . . . 11
SECTION 112. Legal Holidays. . . . . . . . . . . . . . . 11
SECTION 113. No Personal Liability.. . . . . . . . . . . 11
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.. . . . . . . . . . . . 12
SECTION 202. Form of Trustee's Certificate of
Authentication.. . . . . . . . . . . . . . 12
SECTION 203. Securities Issuable in Global Form. . . . . 12
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . 13
SECTION 302. Denominations.. . . . . . . . . . . . . . . 16
SECTION 303. Execution, Authentication, Delivery and
Dating.. . . . . . . . . . . . . . . . . . 16
SECTION 304. Temporary Securities. . . . . . . . . . . . 18
SECTION 305. Registration, Registration of Transfer
and Exchange.. . . . . . . . . . . . . . . 19
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities.. . . . . . . . . . . . . . . . 22
SECTION 307. Payment of Interest; Interest Rights
Preserved. . . . . . . . . . . . . . . . . 23
SECTION 308. Persons Deemed Owners.. . . . . . . . . . . 24
SECTION 309. Cancellation. . . . . . . . . . . . . . . . 25
SECTION 310. Computation of Interest.. . . . . . . . . . 25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.. . 25
SECTION 402. Application of Trust Funds. . . . . . . . . 26
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.. . . . . . . . . . . . . 27
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . 28
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.. . . . . . . . . . 29
SECTION 504. Trustee May File Proofs of Claim. . . . . . 29
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons. . . . 30
SECTION 506. Application of Money Collected. . . . . . . 30
SECTION 507. Limitation on Suits.. . . . . . . . . . . . 31
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, Interest and
Additional Amounts.. . . . . . . . . . . . 31
SECTION 509. Restoration of Rights and Remedies. . . . . 31
SECTION 510. Rights and Remedies Cumulative. . . . . . . 31
SECTION 511. Delay or Omission Not Waiver. . . . . . . . 32
SECTION 512. Control by Holders of Securities. . . . . . 32
SECTION 513. Waiver of Past Defaults.. . . . . . . . . . 32
SECTION 514. Waiver of Usury, Stay or Extension Laws.. . 32
SECTION 515. Undertaking for Costs.. . . . . . . . . . . 32
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. . . . . . . . . . . . . 33
SECTION 602. Certain Rights of Trustee.. . . . . . . . . 33
SECTION 603. Not Responsible for Recitals or Issuance
of Securities. . . . . . . . . . . . . . . 34
SECTION 604. May Hold Securities.. . . . . . . . . . . . 34
SECTION 605. Money Held in Trust.. . . . . . . . . . . . 34
SECTION 606. Compensation and Reimbursement. . . . . . . 34
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests. . . . . . . . . . . 35
SECTION 608. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . 35
SECTION 609. Acceptance of Appointment by Successor. . . 36
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business.. . . . . . . . . . 37
SECTION 611. Appointment of Authentication Agent.. . . . 37
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . 39
SECTION 702. Reports by Trustee. . . . . . . . . . . . . 39
SECTION 703. Reports by Company. . . . . . . . . . . . . 39
SECTION 704. Company to Furnish to Trustee Names and
Addresses of Holders.. . . . . . . . . . . 39
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and
Sales, Leases and Conveyances Permitted
Subject to Certain Conditions. . . . . . . 40
SECTION 802. Rights and Duties of Successor
Corporation. . . . . . . . . . . . . . . . 40
SECTION 803. Officers' Certificate and Opinion of
Counsel. . . . . . . . . . . . . . . . . . 40
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent
of Holders.. . . . . . . . . . . . . . . . 41
SECTION 902. Supplemental Indentures with Consent of
Holders. . . . . . . . . . . . . . . . . . 42
SECTION 903. Execution of Supplemental Indentures. . . . 43
SECTION 904. Effect of Supplemental Indentures.. . . . . 43
SECTION 905. Conformity with Trust Indenture Act.. . . . 43
SECTION 906. Reference in Securities to Supplemental
Indentures.. . . . . . . . . . . . . . . . 43
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any,
Interest and Additional Amounts. . . . . . 43
SECTION 1002. Maintenance of Office or Agency. . . . . . 43
SECTION 1003. Money for Securities Payments to Be Held
in Trust.. . . . . . . . . . . . . . . . . 45
SECTION 1004. Existence. . . . . . . . . . . . . . . . . 46
SECTION 1005. Provision of Financial Information.. . . . 46
SECTION 1006. Statement as to Compliance.. . . . . . . . 46
SECTION 1007. Additional Amounts.. . . . . . . . . . . . 46
SECTION 1008. Waiver of Certain Covenants. . . . . . . . 47
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.. . . . . . . . . 47
SECTION 1102. Election to Redeem; Notice to Trustee. . . 47
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed.. . . . . . . . . . . . . . . . . 47
SECTION 1104. Notice of Redemption.. . . . . . . . . . . 48
SECTION 1105. Deposit of Redemption Price. . . . . . . . 49
SECTION 1106. Securities Payable on Redemption Date. . . 49
SECTION 1107. Securities Redeemed in Part. . . . . . . . 50
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.. . . . . . . . . 50
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities. . . . . . . . . . . . . . 50
SECTION 1203. Redemption of Securities for Sinking
Fund.. . . . . . . . . . . . . . . . . . . 50
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.. . . . . . . . . 51
SECTION 1302. Repayment of Securities. . . . . . . . . . 51
SECTION 1303. Exercise of Option.. . . . . . . . . . . . 51
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable.. . . . . . . . . . 52
SECTION 1305. Securities Repaid in Part. . . . . . . . . 52
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's
Option to Effect Defeasance or Covenant
Defeasance.. . . . . . . . . . . . . . . . 52
SECTION 1402. Defeasance and Discharge.. . . . . . . . . 53
SECTION 1403. Covenant Defeasance. . . . . . . . . . . . 53
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance.. . . . . . . . . . . . . . . . 53
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions.. . . . . . . . . 55
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be
Called.. . . . . . . . . . . . . . . . . . 56
SECTION 1502. Call, Notice and Place of Meetings.. . . . 56
SECTION 1503. Persons Entitled to Vote at Meetings.. . . 56
SECTION 1504. Quorum; Action.. . . . . . . . . . . . . . 56
SECTION 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings. . . . . . . . 57
SECTION 1506. Counting Votes and Recording Action of
Meetings.. . . . . . . . . . . . . . . . . 58
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A- FORMS OF CERTIFICATION
<PAGE>
INDENTURE, dated as of June 1, 1994, between HEALTH AND
RETIREMENT PROPERTIES TRUST, a Maryland real estate investment
trust formerly known as Health and Rehabilitation Properties Trust
(hereinafter called the "Company"), having its principal office at
400 Centre Street, Newton, Massachusetts 02158 and SHAWMUT BANK,
N.A., a national banking association, as Trustee hereunder
(hereinafter called the "Trustee"), having its Corporate Trust
Office at One Federal Street, Boston, Massachusetts 02211.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time
for lawful purposes its unsecured debt securities (hereinafter
called the "Securities") evidencing its unsecured indebtedness, and
has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of the Securities,
unlimited as to principal amount, to bear interest at the rates or
formulas, to mature at such times and to have such other provisions
as shall be fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are deemed to be
incorporated into this Indenture by such Act, and shall, to the
extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase
of the Securities by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders
of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or 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.
Certain terms, used principally in Article Three, Article
Five, Article Six and Article Ten, are defined in those Articles.
"Act", when used with respect to any Holder, has the
meaning specified in Section 104.
"Additional Amounts" means any additional amounts which
are required by a Security or by or pursuant to a Board Resolution,
under circumstances specified therein, to be paid by the Company in
respect of certain taxes imposed on certain Holders and which are
owing to such Holders.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For
the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the
English language or in an official language of the country of
publication, customarily published on each Business Day, whether or
not published on Saturdays, Sundays or holidays, and of general
circulation in each place in connection with which the term is used
or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or
in different Authorized Newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant
to Section 201 which is payable to bearer.
"Board" means the board of trustees of the Company, the
executive committee 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 and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of
Payment or any other particular location referred to in this
Indenture or in the Securities, means, unless otherwise specified
with respect to any Securities pursuant to Section 301, any day,
other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation
or executive order to close.
"Capitalized Leases" means any lease of property by the
Company or any Subsidiary as lessee which is reflected on the
Company's Consolidated Balance Sheet as a capitalized lease in
accordance with GAAP
"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 shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor.
"Company Request" and "Company Order" mean, respectively,
a written request or order signed in the name of the Company by 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.
"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 institution 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 One Federal Street, Boston, Massachusetts 02211.
"corporation" includes corporations, associations,
companies and business trusts.
"coupon" means any interest coupon appertaining to a
Bearer Security.
"Debt" of the Company or any Subsidiary means any
indebtedness of the Company or any Subsidiary, in respect of (i)
borrowed money evidenced by bonds, notes, debentures or similar
instruments, (ii) indebtedness secured by any mortgage, pledge,
lien, charge, encumbrance or any security interest existing on
property owned by the Company or any Subsidiary, (iii) letters of
credit or amounts representing the balance deferred and unpaid of
the purchase price of any property except any such balance that
constitutes an accrued expense or trade payable or (iv) Capitalized
Leases, in the case of items of indebtedness under (i) through
(iii) above to the extent that any such items (other than letters
of credit) would appear as a liability on the Company's
Consolidated Balance Sheet in accordance with GAAP, and also
includes, to the extent not otherwise included, any obligation by
the Company or any Subsidiary to be liable for, or to pay, as
obligor, guarantor or otherwise (other than for purposes of
collection in the ordinary course of business), indebtedness of
another person (other than the Company or any Subsidiary).
"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.
"DTC" means The Depository Trust Company, or any
successor thereto.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of the European
Communities.
"Euroclear" means Morgan Guaranty Trust Company of New
York, Brussels Office, or its successor as operator of the
Euroclear System.
"European Communities" means the European Economic
Community, the European Coal and Steel Community and the European
Atomic Energy Community.
"European Monetary System" means the European Monetary
System established by the Resolution of December 5, 1978 of the
Council of the European Communities.
"Event of Default" has the meaning specified in Article
Five.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU, issued
by the government of one or more countries other than the United
States of America or by any recognized confederation or association
of such governments.
"Funds from Operations" for any period means the
consolidated net income of the Company and its Subsidiaries for
such period without giving effect to depreciation and amortization,
gains or losses from extraordinary items, gains or losses on sales
of real estate, gains or losses on investments in marketable
securities and any provision/benefit for income taxes for such
period, plus funds from operations of unconsolidated joint
ventures, all determined on a consistent basis in accordance with
GAAP.
"GAAP" means generally accepted accounting principles in
effect from time to time as used in the United States applied on a
consistent basis.
"Government Obligations" means securities which are (i)
direct obligations of the United States of America or the
government which issued the Foreign Currency in which the
Securities of a particular series are payable, for the payment of
which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government
which issued the Foreign Currency in which the Securities of such
series are payable, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States of America or such other government, which, in either case,
are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any
such Government Obligation held by such custodian for the account
of the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or
principal of the Government Obligation evidenced by such depository
receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security
Register and, in the case of a Bearer Security, the bearer thereof
and, when used with respect to any coupon, shall mean the bearer
thereof.
"Indenture" means this instrument as originally executed
or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the terms of
particular series of Securities established as contemplated by
Section 301; provided, however, that, if at any time more than one
Person is acting as Trustee under this instrument, "Indenture"
shall mean, with respect to any one or more series of Securities
for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended
by one or more 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, and, when
used with respect to a Security which provides for the payment of
Additional Amounts pursuant to Section 1007, includes such
Additional Amounts.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on 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.
"Officers' Certificate" means a certificate signed by the
President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for the Company or who may be an employee of or
other counsel for the Company 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 cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment
or redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities and any
coupons appertaining thereto, provided that, if such Securities are
to be redeemed, 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 Company has
effected defeasance and/or covenant defeasance as provided in
Article Fourteen;
(iv) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(v) Securities converted into Common Shares or Preferred
Shares of the Company pursuant to or in accordance with this
Indenture if the terms of such Securities provide for
convertibility pursuant to Section 301;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given
any request, demand, authorization, direction, notice, consent or
waiver hereunder or are present at a meeting of Holders for quorum
purposes, and for the purpose of making the calculations required
by TIA Section 313, (i) the principal amount of an Original Issue
Discount Security that may be counted in making such determination
or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that
would be (or shall have been declared to be) due and payable, at
the time of such determination, upon a declaration of acceleration
of the maturity thereof pursuant to Section 502, (ii) the principal
amount of any Security denominated in a Foreign Currency that may
be counted in making such determination or calculation and that
shall be deemed Outstanding for such purpose shall be equal to the
Dollar equivalent, determined pursuant to Section 301 as of the
date such Security is originally issued by the Company, 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 Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in making
such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company
to pay the principal of (and premium, if any) or interest on any
Securities or coupons on behalf of the Company.
"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, 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.
"Registered Security" shall mean any Security established
pursuant to Section 201 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.
"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, 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, as
amended) of the Company.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", 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 Company or by one or more other Subsidiaries of the Company.
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.
"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 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 Company to the Trustee to take
any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application
or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
(including certificates delivered pursuant to Section 1006) shall
include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such condition or covenant has been complied with;
and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In
any case where several matters are required to be certified by or
covered by an opinion of any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered
by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company
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 stating that the information
as to such factual matters is in the possession of the Company,
unless such counsel knows that the certificate or opinion or
representations as to such matters are erroneous.
Where any Person is required to make, give or execute two
or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of the
Outstanding Securities of all series or one or more series, as the
case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders
in person or by agents duly appointed in writing. If Securities of
a series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of
Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions
of Article Fifteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments or so
voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee
and the Company and any agent of the Trustee or the Company, if
made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
(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.
(d) The ownership of Bearer Securities may be proved by
the production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or
other depositary, wherever situated, if such certificate shall be
deemed by the Trustee to be satisfactory, showing that at the date
therein mentioned such Person had on deposit with such depositary,
or exhibited to it, the Bearer Securities therein described; or
such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee
and the Company may assume that such ownership of any Bearer
Security continues until (1) another certificate or affidavit
bearing a later date issued in respect of the same Bearer Security
is produced, or (2) such Bearer Security is produced to the Trustee
by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is
no longer Outstanding. The ownership of Bearer Securities may also
be proved in any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may,
at its option, in or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to do
so. Notwithstanding TIA Section 316(c), such record date shall be
the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to
the first solicitation of Holders generally in connection therewith
and not later than the date such solicitation is completed. If
such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before
or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders
for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture
not later than eleven months after the record date.
(f) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the Holder
of every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the
Company in reliance thereon, whether or not notation of such action
is made upon such Security.
SECTION 105. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Administration, 31st Floor, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage
prepaid, to the Company addressed to it at 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 Company.
SECTION 106. Notice to Holders; Waiver. Where this
Indenture provides for notice of any event to Holders of Registered
Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to each such
Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice
mailed to a Registered 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, and not earlier than the earliest date, prescribed
for the giving of such notice. Any such notice shall be deemed to
have been given on the date of such publication or, if published
more than once, on the date of the first such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice to
Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as shall be given with
the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to
give notice by publication to any particular Holder of Bearer
Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect
to other Holders of Bearer Securities or the sufficiency of any
notice to Holders of Registered Securities given as provided
herein.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture shall
be in the English language, except that any published notice may be
in an official language of the country of publication.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction
hereof.
SECTION 108. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause. In case any provision
in this Indenture or in any Security or coupon shall be invalid,
illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this
Indenture or in the Securities or coupons, 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 Commonwealth of Massachusetts. 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
shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any
series which specifically states that such provision shall apply in
lieu hereof), payment of interest or any Additional Amounts or
principal (and premium, if any) or sinking fund payment need not be
made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date or sinking fund payment date, or at
the Stated Maturity or Maturity, provided that no interest shall
accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, sinking
fund payment date, Stated Maturity or Maturity, as the case may be.
SECTION 113. No Personal Liability. THE DECLARATION OF
TRUST ESTABLISHING THE COMPANY, DATED OCTOBER 9, 1986, A COPY OF
WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION"), IS
DULY FILED IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HEALTH
AND RETIREMENT PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE
DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR
PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR
AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL LIABILITY,
JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE
COMPANY. ALL PERSONS DEALING WITH THE COMPANY, IN ANY WAY, SHALL
LOOK ONLY TO THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM
OR THE PERFORMANCE OF ANY OBLIGATION.
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 in substantially
the forms 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 Company may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or
as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of
any stock exchange on which the Securities may be listed, or to
conform to usage.
Unless otherwise specified as contemplated by Section
301, Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these
methods on a steel engraved border or steel engraved borders or may
be produced in any other manner, all as determined by the officers
of the Company executing such Securities or coupons, as evidenced
by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of
Authentication. Subject to 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.
SHAWMUT BANK, N.A.
as Trustee
By_______________________________
Authorized Officer
SECTION 203. Securities Issuable in Global Form. If
Securities of or within a series are issuable in global form, as
specified in and as contemplated by Section 301, then,
notwithstanding clause (8) of Section 301 and the provisions of
Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein
and may provide that it shall represent the aggregate amount of
Outstanding Securities of such series from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities of
such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease
in the amount, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the
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 Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in
the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery
or redelivery of a Security in global form shall be in writing but
need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall
apply to any Security represented by a Security in global form if
such Security was never issued and sold by the Company and the
Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement
contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of
principal of and any premium and interest on any Security in
permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 308 and except
as provided in the preceding paragraph, the Company, the Trustee
and any agent of the Company and the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities
represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such
permanent global Security in registered form or (ii) in the case of
a permanent global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
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, or determined in the manner
provided, in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as
applicable (each of which (except for the matters set forth in
clauses (1), (2) and (15) below), if so provided, may be determined
from time to time by the Company with respect to unissued
Securities of the series when issued from time to time):
(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 for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date
or dates will be determined, on which the principal of the
Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which
such rate or rates shall be determined, the date or dates from
which such interest shall accrue or the method by which such
date or dates shall be determined, the Interest Payment Dates
on which such interest will be payable and the Regular Record
Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method by which
such date shall be determined, and the basis upon which
interest shall be calculated if other than that of a 360-day
year of twelve 30-day months;
(5) the place or places, if any, other than or in
addition to the City of Boston, where the principal of (and
premium, if any), interest, if any, on, and Additional
Amounts, if any, payable in respect of, Securities of the
series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer,
exchange or conversion and notices or demands to or upon the
Company in respect of the Securities of the series and this
Indenture may be served;
(6) the period or periods within which or the date or
dates on which, the price or prices at which, the currency or
currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part,
at the option of the Company, if the Company is to have the
option;
(7) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any
sinking fund or analogous provision or at the option of a
Holder thereof, and the period or periods within which or the
date or dates on which, the price or prices at which, the
currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and
conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant
to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which any
Registered Securities of the series shall be issuable and, if
other than the denomination of $5,000, the denomination or
denominations in which any Bearer Securities of the series
shall be issuable;
(9) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent for the series;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series
that shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502 or, if applicable,
the portion of the principal amount of Securities of the
series that is convertible in accordance with the provisions
of this Indenture, or the method by which such portion shall
be determined;
(11) if other than Dollars, the Foreign Currency or
Currencies in which payment of the principal of (and premium,
if any), interest, if any, on, and Additional Amounts, if any,
on the Securities of the series shall be payable or in which
the Securities of the series shall be denominated;
(12) whether the amount of payments of principal of (and
premium, if any) or interest, if any, on the Securities of the
series may be determined with reference to an index, formula
or other method (which index, formula or method may be based,
without limitation, on one or more currencies, currency units,
composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts shall be
determined;
(13) whether the principal of (and premium, if any) or
interest, if any on or Additional Amounts, if any, on the
Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a currency or currencies,
currency unit or units or composite currency or currencies
other than that in which such 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
paid;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of
such events as may be specified;
(15) any deletions from, modifications of or additions to
the Events of Default or covenants of the Company set forth in
this Indenture 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);
(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 Section 305, and, if Registered Securities
of the series are to be issuable as a global Security, the
identity of the depositary for such series;
(17) the date as of which any Bearer Securities of 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 in Section 304;
(19) the applicability, if any, of Sections 1402 and/or
1403 to the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the
provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable
in definitive form (whether upon original issue or upon
exchange of a temporary Security of such series) only upon
receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions;
(21) if the Securities of the series are to be issued
upon the exercise of warrants, the time, manner and place for
such Securities to be authenticated and delivered;
(22) whether and under what circumstances the Company
will pay Additional Amounts as contemplated by Section 1007 on
the Securities of the series to any Holder who is not a United
States person (including any modification to the definition of
such term) in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such Additional Amounts
(and the terms of any such option);
(23) the obligation, if any, of the Company to permit the
conversion of the Securities of such series into Common Shares
or Preferred Shares of the Company, as the case may be, and
the terms and conditions upon which such conversion shall be
effected (including, without limitation, the initial
conversion price or rate, the conversion period, any
adjustment of the applicable conversion price and any
requirements relative to the reservation of such shares for
purposes of conversion);
(24) the terms and conditions, if any, upon which payment
of the Securities of such series shall be subordinated to
other Debt of the Company (including, without limitation, the
Debt which ranks senior to such Securities; restrictions on
payments to Holders of such Securities while a default with
respect to such senior Debt is continuing; restrictions, if
any, on payments to the Holders of such Securities following
an Event of Default; and any requirements for Holders of such
Securities to remit certain payments to the holders of such
senior Debt); and
(25) 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 denominations and except as may otherwise be
provided in or pursuant to the Board Resolution establishing the
series (subject to Section 303) and set forth in an Officers'
Certificate or in any 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 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, the Registered Securities of such series,
other than Registered Securities issued in global form (which may
be of any denomination), shall be issuable in denominations of
$1,000 and any integral multiple thereof and the Bearer Securities
of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in
denominations of $5,000.
SECTION 303. Execution, Authentication, Delivery and
Dating. The Securities and any coupons appertaining thereto shall
be executed on behalf of the Company by its President or one of its
Vice Presidents, under its 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 shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior
to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series, together with any coupon appertaining thereto, executed
by the Company 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 in the form set
forth in Exhibit A-1 to this Indenture or such other certificate as
may be specified with respect to any series of Securities pursuant
to Section 301, dated no earlier than 15 days prior to the earlier
of the date on which such Bearer Security is delivered and the date
on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary
Security and this Indenture. 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 cancelled.
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 Sections 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 Company 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 Company
in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute legal, valid and
binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting
the enforcement of creditors' rights generally and to
general equitable principles; and
(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, 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 officer, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and
the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the
preparation of definitive Securities of any series, the Company may
execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form,
or, if authorized, in bearer form with one or more coupons or
without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their
execution of such Securities. In the case of Securities of any
series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(b) or as
otherwise provided in or pursuant to a Board Resolution), if
temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities
of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office
or agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series (accompanied by
any non-matured coupons appertaining thereto), the Company 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, this Section 304(b) shall govern the exchange of
temporary Securities issued in global form other than through the
facilities of DTC. If any such temporary Security is issued in
global form, then such temporary global Security shall, unless
otherwise provided therein, be delivered to the London office of a
depositary or common depositary (the "Common Depositary"), for the
benefit of Euroclear and CEDEL, 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 Company
shall deliver to the Trustee definitive Securities, in aggregate
principal amount equal to the principal amount of such temporary
global Security, executed by the Company. On or after the Exchange
Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company'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 Depositary, such temporary global Security is accompanied by
a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global
Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed
by CEDEL as to the portion of such temporary global Security held
for its account then to be exchanged, each in the form set forth in
Exhibit A-2 to this Indenture or in such other form as may be
established pursuant to Section 301; and provided further that
definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary global Security only in compliance with the
requirements of Section 303.
Unless otherwise specified in such temporary global
Security, the interest of a beneficial owner of Securities of a
series in a temporary global Security shall be exchanged for
definitive Securities of the same series and of like tenor
following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on
his behalf and delivers to Euroclear or CEDEL, as the case may be,
a certificate in the form set forth in Exhibit A-1 to this
Indenture (or in such other forms as may be established pursuant to
Section 301), dated no earlier than 15 days prior to the Exchange
Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating
Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global
Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like unless such Person
takes delivery of such definitive Securities in person at the
offices of Euroclear or CEDEL. Definitive Securities in bearer
form to be delivered in exchange for any portion of a temporary
global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and
delivered hereunder, except that, unless otherwise specified as
contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to
Euroclear and CEDEL on such Interest Payment Date upon delivery by
Euroclear and CEDEL to the Trustee of a certificate or certificates
in the form set forth in Exhibit A-2 to this Indenture (or in such
other forms as may be established pursuant to Section 301), for
credit without further interest on or after such Interest Payment
Date to the respective accounts of persons who are the beneficial
owners of such temporary global Security on such Interest Payment
Date and who have each delivered to Euroclear or CEDEL, as the case
may be, a certificate dated no earlier than 15 days prior to the
Interest Payment Date occurring prior to such Exchange Date in the
form set forth as Exhibit A-1 to this Indenture (or in such other
forms as may be established pursuant to Section 301).
Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the
certification requirements of the preceding two paragraphs of this
Section 304 (b) and of the third paragraph of Section 303 of this
Indenture and the interests of the Persons who are the beneficial
owners of a 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 Company.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate
Trust Office of the Trustee or in any office or agency of the
Company 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 Company 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 Company 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 Company in a Place of
Payment for that series, the Company 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 Company
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 Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender
of such missing coupon or coupons may be waived by the Company and
the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such 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 Bearer Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise
specified as contemplated by Section 301, any permanent global
Security shall be exchangeable only as provided in this paragraph.
If the depositary for any permanent global Security is DTC, then,
unless the terms of such global Security expressly permit such
global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not
in part, only to a nominee of DTC, or by a nominee of DTC to DTC,
or to a successor to DTC for such global Security selected or
approved by the Company or to a nominee of such successor to DTC.
If at any time DTC notifies the Company that it is unwilling or
unable to continue as depositary for the applicable global Security
or Securities or if at any time DTC ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended,
if so required by applicable law or regulation, the Company shall
appoint a successor depositary with respect to such global Security
or Securities. If (x) a successor depositary for such global
Security or Securities is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of
such unwillingness, inability or ineligibility, (y) an Event of
Default has occurred and is continuing and the beneficial owners
representing a majority in principal amount of the applicable
series of Securities represented by such global Security or
Securities advise DTC to cease acting as depositary for such global
Security or Securities or (z) the Company, 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 Company 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 no later than the earliest date on which
such interest may be so exchanged, the Company shall execute, and
the Trustee shall authenticate and deliver, definitive Securities
in aggregate principal amount equal to the principal amount of such
beneficial owner's interest in such permanent global Security. On
or after the earliest date on which such interests may be so
exchanged, such permanent global Security shall be surrendered for
exchange by DTC or such other depositary as shall be specified in
the Company Order with respect thereto to the Trustee, as the
Company'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 before 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 or 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
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so
required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant
to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company 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 of 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 that
portion, if any, of such Security which is 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 Company, together with, in proper cases, such security or
indemnity as may be required by the Company or the Trustee to save
each of them or any agent of either of them harmless, the Company
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 Company 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 written
notice to the Company or the Trustee that such Security or coupon
has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and
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 Company 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, if any), any interest on and any
Additional Amounts with respect to, Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office
or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer
Securities shall be payable only upon presentation and surrender of
the coupons appertaining thereto.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security 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 Company, 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 Company maintained for such purpose pursuant to
Section 1002; provided, however, that each installment of interest
on any Registered Security may at the Company's option be paid by
(i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section
308, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee
located inside the United States.
Unless otherwise provided as contemplated by Section 301
with respect to the Securities of any series, payment of interest
may be made, in the case of a Bearer Security, by transfer to an
account maintained by the payee with a bank located outside the
United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any,
payable on any Interest Payment Date will be paid to DTC, Euroclear
and/or CEDEL, as the case may be, with respect to that portion of
such permanent global Security held for its account by Cede & Co.
or the Common Depositary, as the case may be, for the purpose of
permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the
beneficial owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close
of business (at an office or agency in a Place of Payment for such
series) on any Regular Record Date and before the opening of
business (at such office or agency) on the next succeeding Interest
Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any
interest on any Registered Security of any series that is payable,
but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after
such notice is received by the Trustee), and at the same time
the Company 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 not be more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the
Security Register not less than 10 days prior to such Special
Record Date. The Trustee may, in its discretion, in the name
and at the expense of the Company, cause a similar notice to
be published at least once in an Authorized Newspaper 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 for transfer or exchange at the office or agency
in a Place of Payment for such series after the close of
business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on
the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted
Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder
of such coupon when due in accordance with the provisions of
this Indenture.
(2) The Company may make payment of any Defaulted
Interest on the 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 Company to the Trustee
of the proposed payment pursuant to this clause, such manner
of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners. Prior to due
presentment of a Registered Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security
is registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any), and
(subject to Sections 305 and 307) interest on, such Registered
Security and for all other purposes whatsoever, whether or not such
Registered Security is overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any
agent of the Company 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 is overdue, and
neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Security in global form or
for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or
any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by
any depositary, as a Holder, with respect to such global Security
or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary
(or its nominee) as Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the
Holder, registration of transfer or exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee, and any such
Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly
cancelled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other
Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued
and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of
the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee
for cancellation. No Securities shall be authenticated in lieu of
or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture.
Cancelled Securities and coupons held by the Trustee shall be
destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company, unless by a Company
Order the Company directs their return to it.
SECTION 310. Computation of Interest. Except as
otherwise specified as contemplated by Section 301 with respect to
Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration
of transfer or exchange of Securities of such series herein
expressly provided for and any right to receive Additional Amounts,
as provided in Section 1007), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series when
(1) either
(A) all Securities of such series 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
Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case
of (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
Company, are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with
the Trustee as funds in trust for such 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, if any) and
interest, and any Additional Amounts with respect
thereto, to the date of such deposit (in the case of
Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture as to such
series have been complied with.
The obligations of the Company to the Trustee and any predecessor
Trustee under Section 606, the obligations of the Company 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 the satisfaction and discharge of this Indenture.
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 Company acting
as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any),
and any interest and Additional Amounts for whose payment such
money has been deposited with or received by the Trustee, but such
money need not be segregated from other funds except to the extent
required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default",
wherever used herein with respect to any particular series of
Securities, means any one of the following events (whatever the
reason for such Event of Default and whether or not it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of that
series or of any coupon appertaining thereto, when such
interest, Additional Amounts or coupon becomes due and
payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or
premium, 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 of, or breach of, any
covenant or warranty of the Company 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 Company by the Trustee or to the Company and the
Trustee by the Holders of at least a majority 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 of the Company, or under any
mortgage, indenture or other instrument of the Company
(including a default with respect to Securities of any series
other than that series) under which there may be issued or by
which there may be secured any indebtedness of the Company (or
by any Subsidiary, the repayment of which the Company has
guaranteed or for which the Company is directly responsible or
liable as obligor or guarantor), whether such indebtedness now
exists or shall hereafter be created, which default shall
constitute a failure to pay an aggregate principal amount
exceeding $10,000,000 of such indebtedness when due and
payable after the expiration of any applicable grace period
with respect thereto and shall have resulted in such
indebtedness in an aggregate principal amount exceeding
$10,000,000 becoming or being declared due and payable prior
to the date on which it would otherwise have become due and
payable, without such indebtedness having been discharged, or
such acceleration having been rescinded or annulled, within a
period of 10 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least a
majority in principal amount of the Outstanding Securities of
that series a written notice specifying such default and
requiring the Company to cause such indebtedness to be
discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default"
hereunder; or
(6) the Company 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 Company or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all of
either of its property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary,
and the order or decree remains unstayed and in effect for 90
days; or
(8) the acquisition by any Person (including Affiliates
of such Person) of 20% or more of the issued and outstanding
Common Shares of the Company, unless the Company's Board of
Trustees shall have first approved of such acquisition.
(9) any other Event of Default provided with respect to
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means Title
11, U.S. Code or any similar Federal or State law for the relief of
debtors and the term "Custodian" means any receiver, trustee,
assignee, liquidator or other similar official under any Bankruptcy
Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of
any series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than
a majority in principal amount of the Outstanding Securities of
that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof)
of all the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the
Trustee if given by 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 Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay 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 and any
Additional Amounts payable in respect of all Outstanding
Securities of that series and any related coupons,
(B) the principal of (and premium, if any, on) any
Outstanding Securities of that series which have become
due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates borne by or
provided for in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest
and any Additional Amounts at the rate or rates borne by
or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of
that series, other than the nonpayment of the principal of (or
premium, 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 Company covenants that if:
(1) default is made in the payment of any installment of
interest or Additional Amounts, if any, on any Security of any
series and any related coupon when such interest or Additional
Amount becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security of any series at its
Maturity,
then the Company 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, if any) and
interest and Additional Amounts thereon, with interest upon any
overdue principal (and premium, if any) and, to the extent that
payment of such interest shall be legally enforceable, upon any
overdue installments of interest or Additional Amounts thereon, if
any, at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, and may prosecute such
proceeding to judgment or final decree, and may enforce the same
against the Company 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
Company 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 Company or any other
obligor upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities 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 Company for the payment of overdue principal of, or premium,
if any, or interest on, the Securities) 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, if any) and interest
and Additional Amount, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial
proceeding is hereby authorized by each Holder of Securities of
such series and coupons to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee and any predecessor Trustee, their
agents and counsel, and any other amounts due the Trustee or any
predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of
any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or
coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder of a Security
or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons. All rights of action and
claims under this Indenture or any of the Securities or coupons may
be prosecuted and enforced by the Trustee without the possession of
any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by
the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
be for the ratable benefit of the Holders of 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, if any) or interest and any Additional
Amounts, upon presentation of the Securities or coupons, or both,
as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to 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, if any) and interest and any Additional Amounts
payable, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or
priority of any kind, according to the aggregate amounts due
and payable on such Securities and coupons for principal (and
premium, if any), interest and Additional Amounts,
respectively; and
THIRD: To the payment of the remainder, if any, to the
Company.
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 a majority in
principal amount of the Outstanding Securities of that
series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder
of any Security or coupon shall have the right which is absolute
and unconditional to receive payment of the principal of (and
premium, if any) and (subject to Sections 305 and 307) interest on,
and any Additional Amounts in respect of, such Security or payment
of such coupon on the respective due dates expressed in such
Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the
consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and
such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder,
then and in every such case the Company, 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
expose it to personal liability or be unduly prejudicial to
the Holders of Securities of such series not joining therein.
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, if
any) or interest on or Additional Amounts payable in respect
of any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other default or Event of Default
or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
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 Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
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 a majority in
principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the
principal of (or premium, 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,
if any) or interest on or any Additional Amounts or 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 interest 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 Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order (other than delivery of any Security, together
with any coupons appertaining thereto, to the Trustee for
authentication and delivery pursuant to Section 303 which
shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(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 to take any
action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the 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 reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, 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.
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 Company, and
neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture
or of the Securities or coupons, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder.
Neither the Trustee nor the Authenticating Agent shall be
accountable for the use or application by the Company 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 Company, 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 Company
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 Company.
SECTION 606. Compensation and Reimbursement. The
Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse 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 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 own 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(6) or
Section 501(7), 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
Company 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, if any) or interest on particular
Securities or 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.
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 Company. 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 Company.
(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
Company or by any Holder of a Security who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
607(a) and shall fail to resign after written request therefor
by the Company 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 Company by or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee
with respect to all Securities, or (ii) subject to TIA Section
315(e), any Holder of a Security who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any reason with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities
of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Company 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 Company. If no successor
Trustee with respect to the Securities of any series shall have
been so appointed by the Company 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 Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of
any series and each appointment of a successor Trustee with respect
to the Securities of any series in the manner provided for notices
to the Holders of Securities in Section 106. Each notice shall
include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust
Office.
SECTION 609. Acceptance of Appointment by Successor. (a)
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall
execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, upon request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its claim,
if any, provided for in Section 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 Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto, 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 Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in, and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or (b)
of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall
be qualified and eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business. Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties
hereto. In case any Securities or coupons shall have been
authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver
the Securities or coupons so authenticated with the same effect as
if such successor Trustee had itself authenticated such Securities
or coupons. In case any Securities or coupons shall not have been
authenticated by such predecessor Trustee, any such successor
Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the
full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 611. Appointment of Authentication 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 Company. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided
pursuant to Section 301, shall at all times be a bank or trust
company or corporation organized and doing business and in good
standing under the laws of the United States of America or of any
State or the District of Columbia, authorized under such laws to
act as Authenticating Agent, having a combined capital and surplus
of not less than $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 Company. 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 Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee for
such series may appoint a successor Authenticating Agent which
shall be acceptable to the Company 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 Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation including reimbursement
of its reasonable expenses for its services under this Section.
If an appointment with respect to one or more series is
made pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the
series designated therein referred to in the
within-mentioned Indenture.
SHAWMUT BANK, N.A.,
as Trustee
By:_______________________________
as Authenticating Agent
By:_______________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of
Holders. Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any Authenticating Agent
nor any Paying Agent nor any Security Registrar shall be held
accountable by reason of the disclosure of any information as to
the names and addresses of the Holders of Securities in accordance
with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request
made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after
May 15 of each year commencing with the first May 15 after the
first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit by mail to all Holders of Securities as
provided in TIA Section 313(c) a brief report dated as of such May
15 if required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or
reports pursuant to either of 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 Company with the
conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(3) transmit by mail to 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 Company pursuant to paragraphs (1)
and (2) of this section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 704. Company to Furnish to Trustee Names and
Addresses of Holders. The Company will furnish or cause to be
furnished to the Trustee:
(a) semi-annually, not later than 25 days after the
Regular Record Date for interest for each series of Securities, a
list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Registered Securities of such
series as of such Regular Record Date, or if there is no Regular
Record Date for interest for such series of Securities, semi-
annually, upon such dates as are set forth in the Board Resolution
or indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished,
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 Company and
Sales, Leases and Conveyances Permitted Subject to Certain
Conditions. The Company may consolidate with, or sell, lease or
convey all or substantially all of its assets to, or merge with or
into any other corporation, provided that in any such case, (i)
either the Company 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, if any) and any interest
(including all Additional Amounts, if any, payable pursuant to
Section 1007) 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
Company by supplemental indenture, complying with Article Nine
hereof, satisfactory to the Trustee, executed and delivered to the
Trustee by such corporation and (ii) immediately after giving
effect to such transaction and treating any indebtedness which
becomes an obligation of the Company or any Subsidiary as a result
thereof as having been incurred by the Company or such Subsidiary
at the time of such transaction, no Event of Default, 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 Company, 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 Company, any
or all of the Securities issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee;
and, upon the order of such successor corporation, instead of the
Company, 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 Company 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 of the Company's
obligations under this Indenture 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 Company, when authorized by or pursuant to a Board
Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities
contained; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of less than all
series of Securities, stating that such covenants are
expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and
if such Events of Default are to be for the benefit of less
than all series of Securities, stating that such Events of
Default are expressly being included solely for the benefit of
such series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may
provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case
of other defaults) or may provide for an immediate enforcement
upon such default or may limit the remedies available to the
Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or
those series of Securities to which such additional Events of
Default apply to waive such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable
as to principal, to change or eliminate any restrictions on
the payment of principal of or any premium or interest on
Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form, provided, that
any such action shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons
in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Security Outstanding of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201
and 301, including the provisions and procedures relating to
Securities convertible into Common Shares or Preferred Shares
of the Company, as the case may be; 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 Company and the Trustee, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities 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, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount
thereof or the rate or amount of interest thereon or any
Additional Amounts payable in respect thereof, or any premium
payable upon the redemption thereof, or change any obligation
of the Company to pay Additional Amounts pursuant to Section
1007 (except as contemplated by Section 801(i) and permitted
by Section 901(1)), or reduce the amount of the principal of
an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or 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 the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or
after the Redemption Date or the Repayment Date, as the case
may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver with
respect to such series (or compliance with certain provisions
of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1008, except to increase the required
percentage to effect such action or to provide that certain
other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding
Security affected thereby.
It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included 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 Company shall so determine,
new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any,
Interest and Additional Amounts. The Company covenants and agrees
for the benefit of the Holders of each series of Securities that it
will duly and punctually pay the principal of (and premium, if any)
and interest on and any Additional Amounts payable in respect of
the Securities of that series in accordance with the terms of such
series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, any interest due on
and any Additional Amounts payable in respect of Bearer Securities
on or before Maturity, other than Additional Amounts, if any,
payable as provided in Section 1007 in respect of principal of (or
premium, if any, on) such a Security, shall be payable only upon
presentation and surrender of the several coupons 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 Company, 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 Company shall maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series
may be presented or surrendered for payment or conversion, where
Securities of that series may be surrendered for registration of
transfer or exchange, and where notices and demands to or upon the
Company 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 Company will maintain: (A) in the Borough of
Manhattan, The City of New York, an office or agency where any
Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered
Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for
exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment or conversion
in the circumstances described in the following paragraph (and not
otherwise); (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of
that series and related coupons may be presented and surrendered
for payment (including payment of any Additional Amounts payable on
Securities of that series pursuant to Section 1007) or conversion;
provided, however, that if the Securities of that series are listed
on the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the
Securities of that series in Luxembourg or any other required city
located outside the United States, as the case may be, so long as
the Securities of that series are listed 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 Company in respect of the Securities of that
series and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any
change in the location, of each such office or agency. If at any
time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, except
that Bearer Securities of that series and the related coupons may
be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series
pursuant to Section 1007) or conversion at the offices specified in
the Security in London, England, and the Company hereby appoints
the same as its agent to receive such respective presentations,
surrenders, notices and demands, and the Company 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
interest on or Additional Amounts in respect of Bearer Securities
shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United
States; provided, however, that, if the Securities of a series are
payable in Dollars, payment of principal of and any premium and
interest on any Bearer Security (including any Additional Amounts
payable on Securities of such series pursuant to Section 1007)
shall be made at the office of the Company's Paying Agent in the
City of Boston, if (but only if) payment in Dollars of the full
amount of such principal, premium, interest or Additional Amounts,
as the case may be, at all offices or agencies outside the United
States maintained for such purpose by the Company in accordance
with this Indenture, is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Company 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 designation;
provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an
office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The Company
will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any
such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to
a series of Securities, the Company hereby designates as a Place of
Payment for each series of Securities the office or agency of the
Company in the City of Boston, 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 302, 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 this Indenture, then the Company 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 Company shall at any time act as its own Paying
Agent with respect to any series of any Securities and any related
coupons, it will, by no later than 11:00 am (Boston time) on each
due date of the principal of (and premium, if any), or interest on
or Additional Amounts in respect of, any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the currency or currencies, currency unit
or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such
series) sufficient to pay the principal (and premium, if any) or
interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents
for any series of Securities and any related coupons, it will, on
or before each due date of the principal of (and premium, if any),
or interest on or Additional Amounts in respect of, any Securities
of that series, deposit with a Paying Agent a sum (in the currency
or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay
the principal (and premium, if any) or interest or Additional
Amounts, so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or
interest or Additional Amounts and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of
principal of (and premium, if any) or interest on Securities
in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the
making of any such payment of principal (and premium, if any)
or interest; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with
respect to such 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 Company, in trust for the payment of the
principal of (and premium, if any) or interest on, or any
Additional Amounts in respect of, any Security of any series and
remaining unclaimed for two years after such principal (and
premium, if any), interest or Additional Amounts has become due and
payable shall be paid to the Company upon Company Request or (if
then held by the Company) shall be discharged from such trust; and
the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment of such
principal of (and premium, if any) or interest on, or any
Additional Amounts in respect of, such 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 Company as
trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper, notice that such money
remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. Existence. Subject to Article Eight, the
Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, rights
(declaration and statutory) and franchises; provided, however, that
the Company shall not be required to preserve any right or
franchise if the Board shall determine that the preservation
thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any
material respect to the Holders.
SECTION 1005. Provision of Financial Information.
Whether or not the Company is subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, the Company will, to
the extent permitted under the Securities Exchange Act of 1934, as
amended, file with the Commission the annual reports, quarterly
reports and other documents which the Company would have been
required to file with the Commission pursuant to such Section 13 or
15(d) (the "Financial Statements") if the Company were so subject,
such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Company
would have been required so to file such documents if the Company
were so subject.
The Company will also in any event (x) within 15 days of
each Required Filing Date (i) transmit by mail to all Holders, as
their names and addresses appear in the Security Register, without
cost to such Holders copies of the annual reports and quarterly
reports which the Company would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, if the Company were subject to
such Sections, and (ii) file with the Trustee copies of the annual
reports, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, if the Company were subject to such Sections and (y) if
filing such documents by the Company with the Commission is not
permitted under the Securities Exchange Act of 1934, as amedned,
promptly upon written request and payment of the reasonable cost of
duplication and delivery, supply copies of such documents to any
prospective Holder.
SECTION 1006. Statement as to Compliance. The Company
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 Company's compliance with
all conditions and covenants under this Indenture and, in the event
of any noncompliance, specifying such noncompliance and the nature
and status thereof. For purposes of this Section 1006, such
compliance shall be determined without regard to any period of
grace or requirement of notice under this Indenture.
SECTION 1007. Additional Amounts. If any Securities of
a series provide for the payment of Additional Amounts, the Company
will pay to the Holder of any Security of such series or any coupon
appertaining thereto Additional Amounts as may be specified as
contemplated by Section 301. Whenever in this Indenture there is
mentioned, in any context except in the case of Section 502(1), the
payment of the principal of or any premium or interest on, or in
respect of, any Security of any series or payment of any related
coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided by the terms
of such series established pursuant to Section 301 to the extent
that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express
mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional
Amounts in those provisions hereof where such express mention is
not made.
Except as otherwise specified as contemplated by Section
301, if the Securities of a series provide for the payment of
Additional Amounts, at least 20 days prior to the first Interest
Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear interest prior to Maturity,
the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change
with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the
Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee
and such Paying Agent or Paying Agents whether such payment of
principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any
related coupons who are not United States persons without
withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If
any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required
to be withheld on such payments to such Holders of Securities of
that series or related coupons and the Company will pay to the
Trustee or such Paying Agent the Additional Amounts required by the
terms of such Securities. In the event that the Trustee or any
Paying Agent, as the case may be, shall not so receive the above-
mentioned certificate, then the Trustee or such Paying Agent shall
be entitled (i) to assume that no such withholding or deduction is
required with respect to any payment of principal or interest with
respect to any Securities of a series or related coupons until it
shall have received a certificate advising otherwise and (ii) to
make all payments of principal and interest with respect to the
Securities of a series or related coupons without withholding or
deductions until otherwise advised. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably
incurred without negligence or bad faith on their part arising out
of or in connection with actions taken or omitted by any of them or
in reliance on any Officers' Certificate furnished pursuant to this
Section or in reliance on the Company's not furnishing such an
Officers' Certificate.
SECTION 1008. Waiver of Certain Covenants. The Company
may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1004 or 1005, 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 Company 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 Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of less than all of the
Securities of any series, the Company 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 Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series 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 Company and the
Security Registrar (if other than itself) in writing of the
Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any 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 and
as may be further specified in an indenture supplemental hereto,
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 such Holders
receive such notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any, and
Additional Amounts, if any,
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amount) of the particular
Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only,
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 charge, a new Security or Securities
of authorized denominations for the principal amount thereof
remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in
Section 1106, if any, will become due and payable upon each such
Security, or the portion thereof, to be redeemed and, if
applicable, that interest thereon shall cease to accrue on and
after said date,
(6) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with all
coupons appertaining thereto, if any, maturing after the Redemption
Date, are to be surrendered for payment of the Redemption Price and
accrued interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if such
is the case,
(8) that unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons maturing subsequent to the
Redemption Date or the amount of any such missing coupon or coupons
will be deducted from the Redemption Price, unless security or
indemnity satisfactory to the Company, the Trustee 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 Company, on which such exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who
desires to convert Securities for redemption must satisfy the
requirements for conversion contained in such Securities, the then
existing conversion price or rate, and the date and time when the
option to convert shall expire.
Notice of redemption of Securities to be redeemed shall
be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or prior
to 11:00 am (Boston time) on any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company
is acting as its own Paying Agent, 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
Company 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
Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments
of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or
agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender
of coupons for such interest; and provided further that, except as
otherwise provided with respect to Securities convertible into
Common Shares or Preferred Shares of the Company, 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 Company and the Trustee if there be furnished
to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent
any such missing coupon in respect of which a deduction shall have
been made from the Redemption Price, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest
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, 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 Company or
the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such
Security without service charge a new Security or Securities of the
same series, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to and in exchange for
the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions
of this Article shall be applicable to any sinking fund for the
retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred to
as a "mandatory sinking fund payment", and any payment in excess of
such minimum amount provided for by the terms of such Securities of
any series is herein referred to as an "optional sinking fund
payment". If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may
be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such
series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. The Company 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 Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to
the terms of such Securities, as provided for by the terms of such
Securities, or which have otherwise been acquired by the Company;
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 Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next ensuing
mandatory sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be
satisfied by payment of cash 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 Company 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
Company in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
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 Company covenants that on or before the Repayment
Date it will deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 1003) an amount of money 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 Company 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 Company.
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 Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the
Company 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 Company, 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 Company 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 Company and the
Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made 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
Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and
at the expense of the Company, 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; Company'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
Company 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
Company's exercise of the above option applicable to this Section
with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with
respect to such Outstanding Securities and any coupons appertaining
thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding
Securities and any coupons appertaining thereto, which shall
thereafter be deemed to be "Outstanding" only for the purposes of
Section 1405 and the other Sections of this Indenture referred to
in clauses (A) and (B) below, and to have satisfied all of its
other obligations under such Securities and any coupons
appertaining thereto and this Indenture insofar as such Securities
and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which
shall survive until otherwise terminated or discharged hereunder:
(A) the rights of Holders of 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, if
any) and interest, if any, on such Securities and any coupons
appertaining thereto when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 305,
306, 1002 and 1003 and with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section
1007, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Fourteen. Subject to
compliance with this Article Fourteen, the Company 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 Company's
exercise of the above option applicable to this Section with
respect to any Securities of or within a series, the Company shall
be released from its obligations under Sections 1004 and 1005 and,
if specified pursuant to Section 301, its obligations under any
other covenant, with respect to such Outstanding Securities and any
coupons appertaining thereto on and after the date the conditions
set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining
thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with
Sections 1004 and 1005 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 Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such Section
or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a
default or an Event of Default under Section 501(4) or 501(9) or
otherwise, as the case may be, but except as specified above, the
remainder of this Indenture and such Securities and any coupons
appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application
of Section 1402 or Section 1403 to any Outstanding Securities of or
within a series and any coupons appertaining thereto:
(a) The Company 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) which through the
scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than
one day before the due date of any payment of principal of
(and premium, if any) and interest, if any, on such Securities
and any coupons appertaining thereto, or (2) Government
Obligations applicable to such Securities and coupons
appertaining thereto (determined on the basis of the currency,
currencies or currency unit in which such Securities and
coupons appertaining thereto are then specified as payable at
Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the
due date of any payment of principal of (and premium, if any)
and interest, if any, on such Securities and any coupons
appertaining thereto, money in an amount, or (3) a combination
thereof in an amount, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any) and
interest, 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 Company 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
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company 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
Company 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 Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent to the defeasance under Section
1402 or the covenant defeasance under Section 1403 (as the
case may be) have been complied with and an Opinion of Counsel
to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of
the Company'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 Company,
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
Company 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
Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest and
Additional Amounts, if any, but such money need not be segregated
from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section
1404(a) has been made, (a) the Holder of a Security in respect of
which such deposit was made is entitled to, and does, elect
pursuant to Section 301 or the terms of such Security to receive
payment in a currency or currency unit other than that in which the
deposit pursuant to Section 1404(a) has been made in respect of
such Security, or (b) a Conversion Event occurs in respect of the
currency or currency unit in which the deposit pursuant to Section
1404(a) has been made, the indebtedness represented by such
Security and any coupons appertaining thereto shall be deemed to
have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, 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, in the case of such an election, or,
the applicable market exchange rate in effect for such currency or
currency unit (as nearly as feasible), in the case of such
Conversion Event.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the
Government Obligations deposited pursuant to Section 1404 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of
the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in
Section 1404 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in
accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at
any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
made, given or taken by Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings. (a)
The Trustee may at any time call a meeting of Holders of Securities
of any series for any purpose specified in Section 1501, to be held
at such time and at such place in the City of Boston, or in London
as the Trustee shall determine. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place
of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a 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 21 days
after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company
or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place
in the City of Boston, or in London for such meeting and may call
such meeting for such purposes by giving notice thereof as provided
in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To
be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series
shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to
vote a majority in principal amount of the Outstanding Securities
of a series shall constitute a quorum for a meeting of Holders of
Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders
of not less than 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 determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided in Section 1502(a), except that
such notice need be given only once not less than five days prior
to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal
amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted
by the affirmative vote of the Holders of a majority in principal
amount of the Outstanding Securities of that series; provided,
however, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority,
in principal amount of the Outstanding Securities of a series may
be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in principal amount of
the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with
this Section shall be binding on all the Holders of Securities of
such series and the related coupons, whether or not present or
represented at the meeting.
Notwithstanding the foregoing provisions of this Section
1504, if any action is to be taken at a meeting of Holders of
Securities of any series with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action
that this Indenture expressly provides may be made, given or taken
by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such
series and one or more additional series:
(i) there shall be no minimum quorum requirement for
such meeting; and
(ii) the principal amount of the Outstanding Securities
of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether such
request, demand, authorization, direction, notice, consent,
waiver or other action has been made, given or taken under
this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any provisions of
this Indenture, the Trustee may make such reasonable regulations as
it may deem advisable for any meeting of Holders of Securities of
a series in regard to proof of the holding of Securities of such
series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the Person
executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 104 to certify to the holding
of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section
104 or other proof.
(b) The Trustee shall, by an instrument in writing
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by Holders of Securities
as provided in Section 1502(b), in which case the Company or the
Holders of Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall
be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series
represented at the meeting.
(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 Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
This Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be
an original, but all such counterparts shall together constitute
but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year
first above written.
HEALTH AND RETIREMENT
PROPERTIES TRUST
By:___________________________
Title:
[SEAL]
Attest:
____________________________
Title:
SHAWMUT BANK, N.A.
By:___________________________
Title:
[SEAL]
Attest:
____________________________
Title:
<PAGE>
COMMONWEALTH OF MASSACHUSETTS )
) ss:
COUNTY OF )
On the ___________ day of ______________, 1994, before me
personally came ______________________, to me known, who, being by
me duly sworn, did depose and say that he/she is the ______________
of HEALTH AND RETIREMENT PROPERTIES TRUST, one of the persons
described in and which executed the foregoing instrument; that
he/she knows the seal of said trust; that the seal affixed to said
instrument is such seal; that it was so affixed by authority of the
Board of said trust, and that he/she signed his/her name thereto by
like authority.
[Notarial Seal]
_______________________
Notary Public
COMMISSION EXPIRES
COMMONWEALTH OF MASSACHUSETTS )
) ss:
COUNTY OF )
On the ______ day of _____________, 1994, before me
personally came ________________, to me known, who, being by me
duly sworn, did depose and say that he/she is a _________________
of SHAWMUT BANK, N.A., one of the persons described in and which
executed the foregoing instrument; that he/she knows the seal of
said corporation; that the seal affixed to said instrument is such
seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he/she signed his/her name thereto by
likely authority.
[Notarial Seal]
___________________________
Notary Public
COMMISSION EXPIRES
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
[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 institutions hereby
agrees, on its own behalf or through its agent, that you may advise
Health and Rehabilitation Properties Trust or its agent that such
financial institutions 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)(1)(i)(D)(7),
and, in addition, if the owner is a United States or foreign
financial institutions described in clause (iii) above (whether or
not also described in clause (i) or (ii)), this is to further
certify that such financial institutions 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.
Dated: , 19
[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 Signatory)
Name:
Title:
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or
by electronic transmission from each of the persons appearing in
our records as persons entitled to a portion of the principal
amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$)
principal amount of the above-captioned Securities
(i) is owned by person(s) that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any
estate or trust the income of which is subject to United States
Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a)
foreign branches of United States financial institutions (financial
institutions, as defined in 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 institutions 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.
Date: 19
[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
New York, Brussels Office,]
as Operator of the
Euroclear System
[Cedel S.A.]
SUPPLEMENTAL INDENTURE
by and between
HEALTH AND RETIREMENT PROPERTIES TRUST
(f/k/a Health and Rehabilitation Properties Trust)
and
SHAWMUT BANK, N.A.,
Trustee
as of June 29, 1994
HEALTH AND RETIREMENT PROPERTIES TRUST
Floating Rate Senior Notes, Series A, Due 1999
Floating Rate Senior Notes, Series B, Due 1999
<PAGE>
This SUPPLEMENTAL INDENTURE (this "Supplemental
Indenture") made and entered into as of June 29, 1994 between
Health and Retirement Properties Trust, a Maryland real estate
investment trust formerly known as Health and Rehabilitation
Properties Trust (the "Company"), and Shawmut Bank, N.A., a
national banking association (the "Trustee").
WITNESSETH THAT:
WHEREAS, the Company and the Trustee have executed and
delivered an Indenture, dated as of June 1, 1994 (the "Master
Indenture"), relating to the Company's issuance, from time to time,
of various series of debt securities; and
WHEREAS, the Company has determined to issue two series
of debt securities to be known as its Floating Rate Senior Notes,
Series A, due 1999 (the "Series A Notes") and its Floating Rate
Senior Notes, Series B, due 1999 (the "Series B Notes", and,
together with the Series A Notes, the "Notes"); and
WHEREAS, the Master Indenture provides that certain terms
and conditions for each series of debt securities issued by the
Company thereunder may be set forth in an indenture supplemental to
the Master Indenture;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
ARTICLE ONE
DEFINED TERMS
Section 101. Except as otherwise specified herein, terms
used in this Supplemental Indenture and defined in the Master
Indenture shall have the meanings given them in the Master
Indenture.
Section 102. As used herein, the following terms have
the following meanings:
A "Business Day", as used in this Supplemental Indenture,
means any day, other than a Saturday or Sunday, (i) on which banks
in The City of New York are not required or authorized by law or
executive order to close and (ii) which is also a London Banking
Day (as defined below).
"Floating Rate Investments" means real estate investments
owned by the Company or any Subsidiary, valued on the basis of cost
of each such asset to the Company or any Subsidiary (less principal
amortization, if any) without reduction for depreciation or
adjustments due to asset reappraisals or otherwise, under which the
rental or interest payments to be received by the Company or such
Subsidiary are based on fluctuating interest rates, which have been
designated from time to time by the Company to relate to the Notes.
"Interest Period" with respect to each series of the
Notes is each successive period from and including the preceding
Interest Payment Date (or July 13, 1994 in the case of the initial
Interest Period) to but excluding the applicable Interest Payment
Date or the Stated Maturity, as the case may be. If an Interest
Payment Date other than the Stated Maturity would otherwise be a
day that is not a Business Day, such Interest Payment Date will be
postponed to the succeeding Business Day, unless such succeeding
Business Day is in the succeeding calendar month, in which case
such Interest Payment Date will be advanced to the preceding
Business Day. If the Stated Maturity falls on a day that is not a
Business Day, the required payment will be made on the succeeding
Business Day with the same force and effect as if it were made on
the date such payment was due, and no interest shall accrue on the
amount so payable for the period from and after the Stated
Maturity.
"Interest Rate Protection Arrangements" means interest
rate caps, collars, swaps or similar agreements, the effect of
which is to protect the Company from fluctuations in interest
rates, which have been designated from time to time by the Company
to relate to the Notes.
"LIBOR" means, with respect to any Reset Date (as defined
in Section 201(c)), the rate (expressed as a percentage per annum)
for deposits in U.S. dollars for a three-month period that appears
on Telerate Page 3750 (as defined below) as of 11:00 a.m., London
time, on the applicable Determination Date (as defined in Section
201(c)) for such Reset Date. If such rate does not appear on
Telerate Page 3750 as of 11:00 a.m., London time, on the applicable
Determination Date, the Calculation Agent (as defined in Section
201(c)) will request the principal London office of each of four
major reference banks in the London interbank market selected by
the Calculation Agent to provide such bank's offered quotation
(expressed as a percentage per annum) to prime banks in the London
interbank market for deposits in U.S. dollars for a three-month
period as of 11:00 a.m., London time, on such Determination Date
and in a Representative Amount (as defined below). If at least two
such offered quotations are so provided, LIBOR will be the
arithmetic means of such quotations. If fewer than two such
quotations are so provided, the Calculation Agent will request each
of three major banks in New York City selected by the Calculation
Agent to provide such bank's rate (expressed as a percentage per
annum) for loans in U.S. dollars to leading European banks for a
three-month period as of approximately 11:00 a.m., New York City
time, on the applicable Determination Date and in a Representative
Amount. If at least two such rates are so provided, LIBOR will be
the arithmetic means of such rates. If fewer than two such rates
are so provided, then LIBOR will be LIBOR in effect on the
preceding Reset Date.
"London Banking Day" means any day on which dealings in
Dollars are transacted in the London interbank market.
"Pro Forma Annualized Interest Charges" means, at any
date, (i) the weighted average annualized interest rate applicable
to the Notes as of that date multiplied by the Unhedged Balance,
less (ii) the annualized amounts which should be received by the
Company under the Interest Rate Protection Arrangements in effect
at that date.
"Representative Amount" means a principal amount of not
less than U.S. $1,000,000 that is representative for a single
transaction in the relevant market at the relevant time.
"Telerate Page 3750" means the display designated as
"Page 3750" on the Dow Jones Telerate Service (or such other page
as may replace Page 3750 on that service or such other service as
may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for U.S. dollar deposits).
"Total Adjusted Net Worth" means the excess of total
assets over total liabilities of the Company on a consolidated
basis, computed in accordance with GAAP consistently applied, plus
the aggregate amount of accumulated depreciation and adjustments
due to asset reappraisals or otherwise with respect to any such
assets since the acquisition thereof.
"Total Cash Flow" means, for any period, consolidated net
income of the Company, computed in accordance with GAAP
consistently applied, excluding gains (or losses) from debt
restructuring or sales of property, plus (a) Total Interest
Expense, (b) depreciation, amortization or adjustments due to asset
reappraisals or otherwise, and (c) provisions for income taxes, all
to the extent deducted in computing consolidated net income.
"Total Interest Expense" means, for any period, the
aggregate amount, computed in accordance with GAAP consistently
applied, of interest payable during such period by the Company on
a consolidated basis in respect of all Debt, less amortization of
capitalized fees, costs and expenses incurred in connection with
such Debt or in connection with interest rate caps, collars, swaps,
or similar agreements in respect of any such Debt, all to the
extent included in the computation of interest payable.
"Total Unencumbered Assets" means the aggregate value of
all assets of the Company and any Subsidiary, determined on the
basis of cost of each such asset to the Company or any Subsidiary
(less principal amortization, if any) without reduction for
depreciation or adjustments due to asset reappraisals or otherwise,
which have not been voluntarily pledged, mortgaged or otherwise
encumbered by the owner thereof to secure Debt.
"Unhedged Balance" means, at any date, the aggregate
principal amount of Outstanding Notes, less Floating Rate
Investments as of that date; provided, that if a Floating Rate
Investment is terminated, other than by virtue of its scheduled
maturity, within 30 days or less of that date, such terminated
Floating Rate Investment shall be deemed to remain in effect at
that date.
"Unsecured Debt" means any Debt of the Company or any
Subsidiary on a consolidated basis for which the obligations
thereunder are not secured by a pledge of or other encumbrance on
any assets of the Company or any Subsidiary.
ARTICLE TWO
TERMS OF THE NOTES
Section 201. Pursuant to Section 301 of the Master
Indenture, the Notes shall have the following terms and conditions:
(a) Title. The Series A Notes shall be known as the
Company's Floating Rate Senior Notes, Series A, due 1999. The
Series B Notes shall be known as the Company's Floating Rate Senior
Notes, Series B, due 1999.
(b) Principal Repayment; Currency. The Stated Maturity of
the Notes is July 13, 1999; provided, however, the Notes may be
earlier redeemed at the option of the Company as provided in
paragraph (d) below. The principal of each Note payable on the
Maturity Date shall be paid against presentation and surrender
thereof at the corporate trust office of the Trustee, located
initially at 777 Main Street, Hartford, Connecticut 06115, 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 or private debts.
(c) Interest Payments. Interest on the Notes shall be
payable in Dollars quarterly in arrears on January 13, April 13,
July 13 and October 13 of each year, commencing October 13, 1994,
and on the Maturity Date. The interest so payable shall be paid to
the Holder in whose name the applicable Note is registered at the
close of business on the date (whether or not a Business Day)
fifteen calendar days preceding the applicable Interest Payment
Date or the Maturity Date.
Interest on the Notes will be payable at a floating rate that
will be subject to quarterly adjustment effective as of the
thirteenth day of January, April, July and October (each, a "Reset
Date"); provided, however, that if a Reset Date would otherwise be
a day that is not a Business Day, such Reset Date will be postponed
to the succeeding Business Day, unless such succeeding Business Day
is in the succeeding calendar month, in which case such Reset Date
will be advanced to the preceding Business Day. The "Determination
Date" pertaining to a Reset Date will be the second London Banking
Day preceding such Reset Date.
The interest rate on the Series A Notes in respect of an
Interest Period will be a per annum rate equal to LIBOR (determined
by the Calculation Agent (as defined below) as of the applicable
Determination Date), plus 1.05% and the interest rate on the Series
B Notes in respect of an Interest Period will be a per annum rate
equal to LIBOR (determined by the Calculation Agent (as defined
below) as of the applicable Determination Date), plus .72%;
provided, however, that the interest rate on each series of the
Notes in respect of an Interest Period may not be higher than the
maximum rate permitted by Massachusetts law, as the same may be
modified by United States law of general application.
Interest payable on an Interest Payment Date or the Maturity
Date, as the case may be, will be the amount of interest accrued
during the applicable Interest Period. Accrued interest in respect
of a Note will be calculated by multiplying the principal amount
thereof by an accrued interest factor. Such accrued interest
factor is computed by adding the interest factor calculated for
each day in the applicable Interest Period. The interest factor
for each day will be computed by dividing the interest rate
applicable to such day by 360.
Unless the Company shall have otherwise provided 30 days'
prior written notice to the Holders of the Notes, the "Calculation
Agent" will be Shawmut Bank, N.A. Upon the request of any Holder
of a Note, the Calculation Agent will disclose the interest rate
then in effect with respect to such Note and, if determined, the
interest rate that will become effective as a result of a
determination made for the succeeding Reset Date.
All percentages resulting from any calculation in respect of
a Note will be rounded to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point
rounded upwards, and all dollar amounts used in or resulting from
such calculation in respect of a Note will be rounded to the
nearest cent (with one-half cent rounded upwards).
(d) Prepayment at the Option of the Company. The Notes are
subject to redemption at the option of the Company, as a whole or
from time to time in part, prior to maturity on any Interest
Payment Date on and after April 13, 1995, in the case of the Series
A Notes, or on and after July 13, 1996, in the case of the Series
B Notes, upon not less than 30, nor more than 60 days' prior
written notice given to the Holders of the applicable series of
Notes as provided in the Master Indenture, at a redemption price
equal to 100% of the principal amount thereof, plus accrued and
unpaid interest to the date fixed for redemption; provided,
however, that interest payments due on an Interest Payment Date
which is on or prior to the date fixed for redemption will be
payable to the Holders of such Notes (or one or more predecessor
Notes) on the Regular Record Date related to such Interest Payment
Date.
(e) Form of Notes. The Notes shall be issued by the Company
in registered form as set forth in Exhibit A and Exhibit B attached
hereto and all the terms and provisions thereof are incorporated
herein by reference.
Each series of Notes will be issued in the form of a single
fully-registered Note in book-entry form (each, a "Global Note")
which will be deposited with, or on behalf of, DTC and registered
in the name of DTC's nominee. Except as set forth below, the
Global Notes may not be transferred except as a whole by DTC to a
nominee of DTC or by a nominee of DTC 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.
So long as DTC or its nominee is the registered owner of a
Global Note, DTC or its nominee, as the case may be, will be
considered the sole Holder of the Notes represented by such Global
Note for all purposes under the Master Indenture. Except as
provided below, owners of beneficial interests in such Global Note
will not be entitled to have Notes represented by such Global Note
registered in their names, will not receive or be entitled to
receive physical delivery of Notes in certificated form and will
not be considered the registered owners or Holders thereof under
the Master Indenture or this Supplemental Indenture.
If (i) DTC is at any time unwilling or unable to continue as
depository or if any time DTC ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended,
and a successor depository is not appointed by the Company within
90 days, (ii) an Event of Default under the Master Indenture or the
Supplemental Indenture with respect to the Notes has occurred and
is continuing and the beneficial owners representing a majority in
principal amount of the Notes represented by the applicable Global
Note advise DTC to cease acting as depository or (iii) the Company,
in its sole discretion, determines at any time that the Notes of
such series shall no longer be represented by such Global Note, the
Company will issue individual Notes in certificated form in
exchange for such Global Note. In any such instance, an owner of
a beneficial interest in the Global Note will be entitled to
physical delivery of individual Notes in certificated form of like
series and tenor, equal in principal amount to such beneficial
interest and to have such Notes in certificated form registered in
its name. Notes so issued in certificated form will be issued in
denominations of $1,000 or any integral multiple thereof, and will
be issued in registered form only, without coupons.
ARTICLE THREE
ADDITIONAL COVENANTS
Section 301. In addition to the covenants of the Company
set forth in Article Ten of the Master Indenture, for the benefit
of the Holders of the Notes:
(a) Limitation on Debt. The Company covenants and agrees
that, so long as any Notes remain Outstanding, at the end of each
fiscal year of the Company, it shall maintain a ratio of (a) the
total consolidated Debt of the Company to (b) Total Adjusted Net
Worth, of not more than 1.5:1.
(b) Interest Expense Coverage. The Company covenants and
agrees that, for any fiscal year in which any Notes remain
Outstanding, it will maintain a ratio of (a) Total Cash Flow to (b)
Total Interest Expense, of not less than 2:1.
(c) Limitation on Unsecured Debt. The Company covenants and
agrees that, so long as any Notes remain Outstanding, at the end of
each fiscal year of the Company, it shall maintain a ratio of (a)
Total Unencumbered Assets to (b) total Unsecured Debt, of not less
than 1.4:1.
(d) Interest Rate Protection. The Company covenants and
agrees that, beginning 75 days after the first date on which Notes
are issued, and for so long thereafter as any Notes remain
Outstanding, the Company shall have in effect Interest Rate
Protection Arrangements with respect to a principal amount at least
equal to the Unhedged Balance, such that at any time Pro Forma
Annualized Interest Charges shall not exceed an amount equal to
nine percent (9%) of the Unhedged Balance.
ARTICLE FOUR
ADDITIONAL EVENTS OF DEFAULT
For purposes of this Supplemental Indenture and the Notes, in
addition to the Events of Default set forth in Section 501 of the
Master Indenture, it shall also constitute an "Event of Default" if
an event of default under any bond, debenture, note or other
evidence of indebtedness of the Company (including an event of
default with respect to any other series of Securities), or under
any mortgage, indenture or other instrument of the Company under
which there may be issued or by which there may be secured or
evidenced any indebtedness of the Company (or by any Subsidiary,
the repayment of which the Company has guaranteed or for which the
Company is directly responsible or liable as obligor or guarantor),
whether such indebtedness now exists or shall hereafter be created,
shall happen and shall result in an aggregate principal amount
exceeding $20,000,000 becoming or being declared due and payable
prior to the date on which it would otherwise have become due and
payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of
10 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Notes, a written notice specifying such default and
requiring the Company to cause such indebtedness to be discharged
or cause such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder.
ARTICLE FIVE
EFFECTIVENESS
This Supplemental Indenture shall be effective for all
purposes as of the date and time this Supplemental Indenture has
been executed and delivered by the Company and the Trustee in
accordance with Article Nine of the Master Indenture. As
supplemented hereby, the Master Indenture is hereby confirmed as
being in full force and effect.
ARTICLE SIX
MISCELLANEOUS
Section 601. In the event any provision of this
Supplemental Indenture shall be held invalid or unenforceable by
any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof or
any provision of the Master Indenture.
Section 602. This Supplemental Indenture shall be governed
by and construed in accordance with the laws of The Commonwealth
of Massachusetts.
Section 603. This Supplemental Indenture may be executed in
several counterparts, each of which shall be an original and all
of which shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the Company and the Trustee have
caused this Supplemental Indenture to be executed as an
instrument under seal in their respective corporate names and
attested by their duly authorized officers, all as of the date
first above written.
(SEAL) HEALTH AND RETIREMENT PROPERTIES
TRUST
Attest:
By:_______________________________________
Name:
Title:
___________________________
Name:
Title:
(SEAL) SHAWMUT BANK, N.A., as Trustee
Attest:
By:_______________________________________
Name:
Title:
___________________________
Name:
Title:
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation (the
"Depository") (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and
such Note issued is registered in the name of CEDE & CO., or such
other name as requested by an authorized representative of the
Depository, 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 Note is exchanged in whole or in part for
Notes in certificated form, this Note may not be transferred except
as a whole by the Depository to a nominee thereof or by a nominee
thereof to the Depository or another nominee of the Depository or
by the Depository or any such nominee to a successor of the
Depository or a nominee of such successor.
REGISTERED REGISTERED
NO. R-001 PRINCIPAL AMOUNT
CUSIP NO. 422169 AA 0 $75,000,000
HEALTH AND RETIREMENT PROPERTIES TRUST
Floating Rate Senior Note, Series A, due 1999
Health and Retirement Properties Trust, a Maryland real estate
investment trust (herein referred to as the "Company", which term
includes any successor under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to CEDE
& CO., c/o The Depository Trust Company, 55 Water Street, New York,
New York 10041, or registered assigns, the principal sum of
Seventy Five Million Dollars ($75,000,000) on July 13, 1999, (the
"Maturity Date"), and to pay interest thereon from July 13, 1994 or
from the most recent Interest Payment Date to which interest has
been paid or duly provided for, quarterly on January 13, April 13,
July 13 and October 13 of each year (each, an "Interest Payment
Date"), commencing October 13, 1994, and on the Maturity Date, at
the rate of interest described below, 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 and on the Maturity Date will, as
provided in such Indenture, be paid to the Holder in whose name
this Note (or one or more Predecessor Securities ) is registered at
the close of business on the Regular Record Date for such interest,
which shall be fifteen calendar days (whether or not a Business
Day, as defined below) next preceding such Interest Payment Date or
the Maturity Date, as the case may be (each, a "Regular Record
Date"). Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the Holder in whose name
this Note (or one or more Predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee referred to on the
reverse hereof, notice whereof shall be given to Holders of Notes
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 Notes 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.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the
office or agency of the Company maintained for that purpose in the
City of Hartford. The Company hereby initially appoints Shawmut
Bank, N.A. as Paying Agent for the Notes where Notes of the series
may be presented and surrendered for payment and where notices,
designations or requests in respect of payments with respect to the
Notes may be served.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will include the amount
of interest accrued during the applicable Interest Period (as
defined below). Accrued interest in respect hereof will be
calculated by multiplying the principal amount hereof by an accrued
interest factor. Such accrued interest factor is computed by
adding the interest factor calculated for each day in the
applicable Interest Period. The interest factor for each day will
be computed by dividing the interest rate applicable to such day by
360.
An "Interest Period" is each period from and including the
immediately preceding Interest Payment Date in respect of which
interest has been paid or duly provided for (or from and including
July 13, 1994, if no interest has been paid on this Note) to but
excluding the applicable Interest Payment Date or the Maturity
Date, as the case may be. If any Interest Payment Date other than
the Maturity Date would otherwise be a day that is not a Business
Day, such Interest Payment Date will be postponed to the succeeding
Business Day, unless such succeeding Business Day is in the
succeeding calendar month, in which case such Interest Payment Date
will be the preceding Business Day. If the Maturity Date falls on
a day that is not a Business Day, principal and interest payable on
the Maturity Date will be paid on the 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 the Maturity Date, as the
case may be. "Business Day" means any day, (i) other than a
Saturday or Sunday, on which banks in The City of New York are not
required or authorized by law or executive order to close and (ii)
which is also a London Banking Day (as defined below). A "London
Banking Day" is any day on which dealings in United States dollars
are transacted in the London interbank market.
The interest rate hereon will be payable at a floating rate
that will be subject to quarterly adjustment effective as of the
thirteenth day of January, April, July and October (each, a "Reset
Date"); provided, however, that if a Reset Date would otherwise be
a day that is not a Business Day, such Reset Date will be postponed
to the succeeding Business Day, unless such succeeding Business Day
is in the succeeding calendar month, in which case such Reset Date
will be the preceding Business Day. The "Determination Date"
pertaining to a Reset Date will be the second London Banking Day
preceding such Reset Date.
The interest rate hereon in respect of an Interest Period will
be a per annum rate equal to LIBOR (determined by the Calculation
Agent (as defined below) as of the applicable Determination Date as
described below), plus 1.05%; provided, however, that the interest
rate hereon in respect of an Interest Period may not be higher than
the maximum rate permitted by Massachusetts law, as the same may be
modified by United States law of general application.
"LIBOR" means, with respect to any Reset Date, the rate
(expressed as a percentage per annum) for deposits in U.S. dollars
for a three-month period that appears on Telerate Page 3750 (as
defined below) as of 11:00 a.m., London time, on the applicable
Determination Date for such Reset Date. If such rate does not
appear on Telerate Page 3750 as of 11:00 a.m., London time, on the
applicable Determination Date, the Calculation Agent will request
the principal London office of each of four major reference banks
in the London interbank market selected by the Calculation Agent to
provide such bank's offered quotation (expressed as a percentage
per annum) to prime banks in the London interbank market for
deposits in U.S. dollars for a three-month period as of 11:00 a.m.,
London time, on such Determination Date and in a Representative
Amount (as defined below). If at least two such offered quotations
are so provided, LIBOR will be the arithmetic mean of such
quotations. If fewer than two such quotations are so provided, the
Calculation Agent will request each of three major banks in New
York City selected by the Calculation Agent to provide such bank's
rate (expressed as a percentage per annum) for loans in U.S.
dollars to leading European banks for a three-month period as of
approximately 11:00 a.m., New York City time, on the applicable
Determination Date and in a Representative Amount. If at least two
such rates are so provided, LIBOR will be the arithmetic mean of
such rates. If fewer than two such rates are so provided, then
LIBOR will be LIBOR in effect on the preceding Reset Date.
"Representative Amount" means a principal amount of not less
than U.S. $1,000,000 that is representative for a single
transaction in the relevant market at the relevant time.
"Telerate Page 3750" means the display designated as "Page
3750" on the Dow Jones Telerate Service (or such other page as may
replace Page 3750 on that service or such other service as may be
nominated by the British Bankers' Association as the information
vendor for the purpose of displaying British Bankers' Association
Interest Settlement Rates for U.S. dollar deposits).
All percentages resulting from any calculation in respect of
this Note will be rounded to the nearest one hundred-thousandth of
a percentage point, with five one-millionths of a percentage point
rounded upwards (e.g., 9.876545% (or .09876545) would be rounded to
9.87655% (or .0987655)), and all dollar amounts used in or
resulting from such calculation in respect of this Note will be
rounded to the nearest cent (with one-half cent rounded upwards).
The Company hereby appoints Shawmut Bank, N.A. as "Calculation
Agent", and unless the Company shall have otherwise provided 30
days' prior written notice to the Holders of the Notes, Shawmut
Bank, N.A. will be the Calculation Agent. Upon the request of any
Holder of a Note, the Calculation Agent will disclose the interest
rate then in effect and, if determined, the interest rate that will
become effective as a result of a determination made for the
succeeding Reset Date.
Payments of principal and/or interest by the Company in
respect of this Note will be made by wire transfer of immediately
available funds 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.
Reference is hereby made to the further provisions of this
Note 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 Note shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its facsimile seal.
Dated: , 1994
HEALTH AND RETIREMENT
PROPERTIES TRUST
By:________________________________
Name:
Title:
Attest:
____________________________
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred
to in the within-mentioned Indenture.
SHAWMUT BANK, N.A., as Trustee
___________________________________
Authorized Signatory
[Reverse of Note]
HEALTH AND RETIREMENT PROPERTIES TRUST
Floating Rate Senior Note, Series A, due 1999
This Note is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of June
1, 1994 (herein called the "Indenture"), and a Supplemental
Indenture, dated as of June 29, 1994 (herein called the
"Supplemental Indenture"), between the Company and Shawmut Bank,
N.A., as Trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture with respect to the
series of which this Note is a part), to which Indenture and all
indentures supplemental thereto (including the Supplemental
Indenture) reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities
thereunder of the Company, 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 Note is one of the duly
authorized series of Securities designated as "Floating Rate Senior
Notes, Series A, due 1999" (collectively, the "Notes"), and the
aggregate principal amount of the Notes to be issued such series is
limited to $75,000,000 (except for Notes authenticated and
delivered upon transfer of, or in exchange for, or in lieu of other
Notes). All terms used but not defined in this Note shall have the
meanings assigned to such terms in the Indenture.
If an Event of Default, as defined in the Indenture, shall
occur and be continuing, the principal of the Notes of this series
may be declared due and payable in the manner and with the effect
provided in the Indenture.
This Note may be redeemed at the option of the Company, as a
whole or from time to time in part, prior to the Maturity Date on
any Interest Payment Date on and after April 13, 1995, upon not
less than 30, nor more than 60 days' prior written notice given to
Holders of the Notes, at a redemption price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest to the
date fixed for redemption; provided, however, that interest
payments on the date fixed for redemption will be payable to
Holders of such Notes (or one or more predecessor Notes) on the
Regular Record Date related to the Interest Payment Date on which
such date fixed for redemption falls. This Note may not be repaid
at the option of the Holder hereof prior to the Maturity Date and
is not subject to any sinking fund.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time by the Company 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 Company 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 of the Outstanding Securities of any
series, in certain instances, 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 Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Note and other
Notes issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture or Supplemental Indenture
and no provision of this Note or of the Indenture or Supplemental
Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, places and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and Supplemental Indenture and
subject to certain limitations therein and herein set forth, the
transfer of this Note is registrable in the Security Register of
the Company upon surrender of this Note for registration of
transfer at the office or agency of the Company in any place where
the principal of and interest on this Note are payable, duly
endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or by his attorney duly authorized
in writing, and thereupon one or more new Notes, of authorized
denomination 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 Note is exchangeable
for a like aggregate principal amount of Notes of different
authorized denominations but otherwise having the same terms and
conditions, as requested by the Holder hereof surrendering the
same.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name this Note is
registered as the owner thereof for all purposes, whether or not
this Note be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
The Indenture, the Supplemental Indenture and the Notes shall
be governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts applicable to agreements made and to
be performed entirely in such State.<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were
written out in full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common
UNIF GIFT MIN ACT ___________ Custodian_________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_____________________________
(State)
Additional abbreviations may also be used
though not in the above list
_____________________________
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto ____________________________________________
_________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
_________________________________________________________________
_________________________________________________________________
(Please print or typewrite Name and Address including Postal Zip
Code of Assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _______________________________________
________________________________________________ to transfer said
Note on the books of the Company, with full power of substitution
in the premises.
Dated:_______________________
Signature Guaranteed
______________________________ _________________________
NOTICE: Signature must be NOTICE: The signature to this
guaranteed by a member firm of assignment must correspond
the New York Stock Exchange or with the name as written upon
a commercial bank or trust the face of the within Note in
company. every particular, without
alteration or an enlargement
or any change whatever.
Unless this Note is presented by an authorized representative of
The Depository Trust Company, a New York corporation (the
"Depository") (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and
such Note issued is registered in the name of CEDE & CO., or such
other name as requested by an authorized representative of the
Depository, 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 Note is exchanged in whole or in part for
Notes in certificated form, this Note may not be transferred except
as a whole by the Depository to a nominee thereof or by a nominee
thereof to the Depository or another nominee of the Depository or
by the Depository or any such nominee to a successor of the
Depository or a nominee of such successor.
REGISTERED REGISTERED
NO. R-001 PRINCIPAL AMOUNT
CUSIP NO. 422169 AB 8 $125,000,000
HEALTH AND RETIREMENT PROPERTIES TRUST
Floating Rate Senior Note, Series B, due 1999
Health and Retirement Properties Trust, a Maryland real estate
investment trust (herein referred to as the "Company", which term
includes any successor under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to CEDE
& CO., c/o The Depository Trust Company, 55 Water Street, New York,
New York 10041, or registered assigns, the principal sum of One
Hundred Twenty Five Miliion Dollars ($125,000,000) on July 13,
1999, (the "Maturity Date"), and to pay interest thereon from July
13, 1994 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, quarterly on January
13, April 13, July 13 and October 13 of each year (each, an
"Interest Payment Date"), commencing October 13, 1994, and on the
Maturity Date, at the rate of interest described below, 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 and on the Maturity Date will, as
provided in such Indenture, be paid to the Holder in whose name
this Note (or one or more Predecessor Securities ) is registered at
the close of business on the Regular Record Date for such interest,
which shall be fifteen calendar days (whether or not a Business
Day, as defined below) next preceding such Interest Payment Date or
the Maturity Date, as the case may be (each, a "Regular Record
Date"). Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and may be paid to the Holder in whose name
this Note (or one or more Predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee referred to on the
reverse hereof, notice whereof shall be given to Holders of Notes
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 Notes 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.
The principal of this Note payable on the Maturity Date will
be paid against presentation and surrender of this Note at the
office or agency of the Company maintained for that purpose in the
City of Hartford. The Company hereby initially appoints Shawmut
Bank, N.A. as Paying Agent for the Notes where Notes of the series
may be presented and surrendered for payment and where notices,
designations or requests in respect of payments with respect to the
Notes may be served.
Interest payable on this Note on any Interest Payment Date and
on the Maturity Date, as the case may be, will include the amount
of interest accrued during the applicable Interest Period (as
defined below). Accrued interest in respect hereof will be
calculated by multiplying the principal amount hereof by an accrued
interest factor. Such accrued interest factor is computed by
adding the interest factor calculated for each day in the
applicable Interest Period. The interest factor for each day will
be computed by dividing the interest rate applicable to such day by
360.
An "Interest Period" is each period from and including the
immediately preceding Interest Payment Date in respect of which
interest has been paid or duly provided for (or from and including
July 13, 1994, if no interest has been paid on this Note) to but
excluding the applicable Interest Payment Date or the Maturity
Date, as the case may be. If any Interest Payment Date other than
the Maturity Date would otherwise be a day that is not a Business
Day, such Interest Payment Date will be postponed to the succeeding
Business Day, unless such succeeding Business Day is in the
succeeding calendar month, in which case such Interest Payment Date
will be the preceding Business Day. If the Maturity Date falls on
a day that is not a Business Day, principal and interest payable on
the Maturity Date will be paid on the 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 the Maturity Date, as the
case may be. "Business Day" means any day, (i) other than a
Saturday or Sunday, on which banks in The City of New York are not
required or authorized by law or executive order to close and (ii)
which is also a London Banking Day (as defined below). A "London
Banking Day" is any day on which dealings in United States dollars
are transacted in the London interbank market.
The interest rate hereon will be payable at a floating rate
that will be subject to quarterly adjustment effective as of the
thirteenth day of January, April, July and October (each, a "Reset
Date"); provided, however, that if a Reset Date would otherwise be
a day that is not a Business Day, such Reset Date will be postponed
to the succeeding Business Day, unless such succeeding Business Day
is in the succeeding calendar month, in which case such Reset Date
will be the preceding Business Day. The "Determination Date"
pertaining to a Reset Date will be the second London Banking Day
preceding such Reset Date.
The interest rate hereon in respect of an Interest Period will
be a per annum rate equal to LIBOR (determined by the Calculation
Agent (as defined below) as of the applicable Determination Date as
described below), plus .72%; provided, however, that the interest
rate hereon in respect of an Interest Period may not be higher than
the maximum rate permitted by New York law, as the same may be
modified by United States law of general application.
"LIBOR" means, with respect to any Reset Date, the rate
(expressed as a percentage per annum) for deposits in U.S. dollars
for a three-month period that appears on Telerate Page 3750 (as
defined below) as of 11:00 a.m., London time, on the applicable
Determination Date for such Reset Date. If such rate does not
appear on Telerate Page 3750 as of 11:00 a.m., London time, on the
applicable Determination Date, the Calculation Agent will request
the principal London office of each of four major reference banks
in the London interbank market selected by the Calculation Agent to
provide such bank's offered quotation (expressed as a percentage
per annum) to prime banks in the London interbank market for
deposits in U.S. dollars for a three-month period as of 11:00 a.m.,
London time, on such Determination Date and in a Representative
Amount (as defined below). If at least two such offered quotations
are so provided, LIBOR will be the arithmetic mean of such
quotations. If fewer than two such quotations are so provided, the
Calculation Agent will request each of three major banks in New
York City selected by the Calculation Agent to provide such bank's
rate (expressed as a percentage per annum) for loans in U.S.
dollars to leading European banks for a three-month period as of
approximately 11:00 a.m., New York City time, on the applicable
Determination Date and in a Representative Amount. If at least two
such rates are so provided, LIBOR will be the arithmetic mean of
such rates. If fewer than two such rates are so provided, then
LIBOR will be LIBOR in effect on the preceding Reset Date.
"Representative Amount" means a principal amount of not less
than U.S. $1,000,000 that is representative for a single
transaction in the relevant market at the relevant time.
"Telerate Page 3750" means the display designated as "Page
3750" on the Dow Jones Telerate Service (or such other page as may
replace Page 3750 on that service or such other service as may be
nominated by the British Bankers' Association as the information
vendor for the purpose of displaying British Bankers' Association
Interest Settlement Rates for U.S. dollar deposits).
All percentages resulting from any calculation in respect of
this Note will be rounded to the nearest one hundred-thousandth of
a percentage point, with five one-millionths of a percentage point
rounded upwards (e.g., 9.876545% (or .09876545) would be rounded to
9.87655% (or .0987655)), and all dollar amounts used in or
resulting from such calculation in respect of this Note will be
rounded to the nearest cent (with one-half cent rounded upwards).
The Company hereby appoints Shawmut Bank, N.A. as "Calculation
Agent", and unless the Company shall have otherwise provided 30
days' prior written notice to the Holders of the Notes, Shawmut
Bank, N.A. will be the Calculation Agent. Upon the request of any
Holder of a Note, the Calculation Agent will disclose the interest
rate then in effect and, if determined, the interest rate that will
become effective as a result of a determination made for the
succeeding Reset Date.
Payments of principal and/or interest by the Company in
respect of this Note will be made by wire transfer of immediately
available funds 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.
Reference is hereby made to the further provisions of this
Note 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 Note shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its facsimile seal.
Dated: , 1994
HEALTH AND RETIREMENT
PROPERTIES TRUST
By:________________________________
Name:
Title:
Attest:
____________________________
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred
to in the within-mentioned Indenture.
SHAWMUT BANK, N.A., as Trustee
___________________________________
Authorized Signatory
[Reverse of Note]
HEALTH AND RETIREMENT PROPERTIES TRUST
Floating Rate Senior Note, Series B, due 1999
This Note is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of June
1, 1994 (herein called the "Indenture"), and a Supplemental
Indenture, dated as of June 29, 1994 (herein called the
"Supplemental Indenture"), between the Company and Shawmut Bank,
N.A., as Trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture with respect to the
series of which this Note is a part), to which Indenture and all
indentures supplemental thereto (including the Supplemental
Indenture) reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities
thereunder of the Company, 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 Note is one of the duly
authorized series of Securities designated as "Floating Rate Senior
Notes, Series B, due 1999" (collectively, the "Notes"), and the
aggregate principal amount of the Notes to be issued such series is
limited to $125,000,000 (except for Notes authenticated and
delivered upon transfer of, or in exchange for, or in lieu of other
Notes). All terms used but not defined in this Note shall have the
meanings assigned to such terms in the Indenture.
If an Event of Default, as defined in the Indenture, shall
occur and be continuing, the principal of the Notes of this series
may be declared due and payable in the manner and with the effect
provided in the Indenture.
This Note may be redeemed at the option of the Company, as a
whole or from time to time in part, prior to the Maturity Date on
any Interest Payment Date on and after July 13, 1996, upon not less
than 30, nor more than 60 days' prior written notice given to
Holders of the Notes, at a redemption price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest to the
date fixed for redemption; provided, however, that interest
payments on the date fixed for redemption will be payable to
Holders of such Notes (or one or more predecessor Notes) on the
Regular Record Date related to the Interest Payment Date on which
such date fixed for redemption falls. This Note may not be repaid
at the option of the Holder hereof prior to the Maturity Date and
is not subject to any sinking fund.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Company and the rights of the Holders of the
Securities under the Indenture at any time by the Company 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 Company 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 of the Outstanding Securities of any
series, in certain instances, 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 Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Note and other
Notes issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture or Supplemental Indenture
and no provision of this Note or of the Indenture or Supplemental
Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and
interest on this Note at the times, places and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and Supplemental Indenture and
subject to certain limitations therein and herein set forth, the
transfer of this Note is registrable in the Security Register of
the Company upon surrender of this Note for registration of
transfer at the office or agency of the Company in any place where
the principal of and interest on this Note are payable, duly
endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or by his attorney duly authorized
in writing, and thereupon one or more new Notes, of authorized
denomination 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 Note is exchangeable
for a like aggregate principal amount of Notes of different
authorized denominations but otherwise having the same terms and
conditions, as requested by the Holder hereof surrendering the
same.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name this Note is
registered as the owner thereof for all purposes, whether or not
this Note be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
The Indenture, the Supplemental Indenture and the Notes shall
be governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts applicable to agreements made and to
be performed entirely in such State.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were
written out in full according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common
UNIF GIFT MIN ACT ___________ Custodian ________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_____________________________
(State)
Additional abbreviations may also be used
though not in the above list
_____________________________
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto __________________________________________
_________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
_________________________________________________________________
_________________________________________________________________
(Please print or typewrite Name and Address including Postal Zip
Code of Assignee)
the within Note and all rights thereunder, and hereby irrevocably
constitutes and appoints ________________________________________
_________________________________________________________________
to transfer said Note on the books of the Company, with full power
of substitution in the premises.
Dated:_______________________
Signature Guaranteed
___________________________ ____________________________
NOTICE: Signature must be NOTICE: The signature to this
guaranteed by a member firm of assignment must correspond
the New York Stock Exchange or with the name as written upon
a commercial bank or trust the face of the within Note in
company. every particular, without
alteration or an enlargement
or any change whatever.
