<PAGE> 1
As filed with the Securities and Exchange Commission on February 10, 1995.
Registration Statement No. 33-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
WEINGARTEN REALTY INVESTORS
(Exact name of Registrant as specified in its charter)
TEXAS 74-1464203
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2600 CITADEL PLAZA DRIVE
HOUSTON, TEXAS 77008
(713) 866-6000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
--------------------
STANFORD ALEXANDER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
WEINGARTEN REALTY INVESTORS
2600 CITADEL PLAZA DRIVE
HOUSTON, TEXAS 77008
(713) 866-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
COPIES TO:
ROBERT V. JEWELL HOWARD G. GODWIN, JR.
ANDREWS & KURTH L.L.P. BROWN & WOOD
4200 TEXAS COMMERCE TOWER ONE WORLD TRADE CENTER
HOUSTON, TEXAS 77002 NEW YORK, NEW YORK 10048-0557
--------------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement as
determined by market conditions.
--------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Title Of Each Class Of Proposed Maximum Proposed Maximum Amount Of
Securities To Be Amount To Be Offering Price Aggregate Offering Registration
Registered (1) Registered (2) Per Unit (3) Price (2) (3) Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities
Preferred Shares (4) ) ) ) )
Common Shares (5) ) $200,000,000 ) (6) ) $200,000,000 ) $68,966(7)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
__________________________________
(1) This Registration Statement also covers delayed delivery contracts that may
be issued by the Registrant under which the party purchasing such contracts
may be required to purchase Debt Securities, Preferred Shares or Common
Shares. Such contracts may be issued together with the specific Securities
to which they relate. In addition, Securities registered hereunder either
may be sold separately or as units comprised of more than one type of
Security registered hereunder.
(2) In U. S. Dollars or the equivalent thereof denominated in one or more
foreign currencies or units of two or more foreign currencies or composite
currencies (such as European Currency Units).
(3) Estimated solely for the purpose of calculating the registration fee.
This Registration Statement is intended to register both the issuance of
Common Shares and Preferred Shares issued for sale directly by the Company,
as well as the issuance of such Common and Preferred Shares upon the
conversion of the Debt Securities or the Preferred Shares, as appropriate.
No separate consideration will be received for Common Shares or Preferred
Shares that are issued upon conversion of Debt Securities or Preferred
Shares registered hereunder, as the case may be. The aggregate maximum
offering price of all Securities issued pursuant to this Registration
Statement will not exceed $200,000,000.
<PAGE> 2
(Footnotes continued from previous page)
(4) Such indeterminate number of Preferred Shares as may from time to time be
issued at indeterminate prices or issuable upon conversion of Debt
Securities.
(5) Such indeterminate number of Common Shares as may from time to time be
issued at indeterminate prices or issuable upon conversion of Debt
Securities or Preferred Shares registered hereunder, as the case may be.
(6) Omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933, as amended.
(7) Calculated pursuant to Rule 457(o) under the Securities Act of 1933,
as amended.
--------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 3
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED FEBRUARY 10, 1995
PROSPECTUS
WEINGARTEN REALTY INVESTORS
$200,000,000
DEBT SECURITIES, PREFERRED SHARES AND COMMON SHARES
--------------------
Weingarten Realty Investors, a real estate investment trust formed
under Texas law (the "Company"), may from time to time offer in one or more
series (i) its unsecured debt securities (the "Debt Securities"), (ii) its
preferred shares of beneficial interest, par value $.03 per share (the
"Preferred Shares"), and (iii) its common shares of beneficial interest, par
value $.03 per share (the "Common Shares"), with an aggregate public offering
price of up to $200,000,000 (or its equivalent in any other currency or
composite currency based on the exchange rate at the time of sale) in amounts,
at prices and on terms to be determined at the time of offering. The Debt
Securities, Preferred Shares and Common Shares (collectively, the "Securities")
may be offered, separately or together, in separate series in amounts, at
prices and on terms to be set forth in a supplement to this Prospectus (a
"Prospectus Supplement").
The Debt Securities will be direct unsecured obligations of the Company
and may be either senior Debt Securities ("Senior Securities") or subordinated
Debt Securities ("Subordinated Securities"). The Senior Securities will rank
equally with all other unsecured and unsubordinated indebtedness of the
Company. The Subordinated Securities will be subordinated to all existing and
future Senior Debt of the Company, as defined. See "Description of Debt
Securities."
The specific terms of the Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable: (i) in the case of Debt
Securities, the specific title, aggregate principal amount, currency, form
(which may be registered or bearer, or certificated or global), authorized
denominations, maturity, rate (or manner of calculation thereof) and time of
payment of interest, terms for redemption at the option of the Company or
repayment at the option of the Holder, terms for sinking fund payments, terms
for conversion into Preferred Shares or Common Shares and any initial public
offering price; (ii) in the case of Preferred Shares, the specific title and
stated value, any dividend, liquidation, redemption, conversion, voting and
other rights, and any initial public offering price; and (iii) in the case of
Common Shares, any initial public offering price. In addition, such specific
terms may include limitations on direct or beneficial ownership and
restrictions on transfer of the Securities, in each case as may be appropriate
to preserve the status of the Company as a real estate investment trust
("REIT") for federal income tax purposes.
The applicable Prospectus Supplement will also contain information,
where applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Securities
covered by such Prospectus Supplement.
The Securities may be offered directly, through agents designated from
time to time by the Company, or to or through underwriters or dealers. If any
agents or underwriters are involved in the sale of any of the Securities, their
names, and any applicable purchase price, fee, commission or discount
arrangement between or among them, will be set forth, or will be calculable
from the information set forth, in the applicable Prospectus Supplement. See
"Plan of Distribution." No Securities may be sold without delivery of the
applicable Prospectus Supplement describing the method and terms of the
offering of such series of Securities.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
--------------------
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON
OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION
TO THE CONTRARY IS UNLAWFUL.
--------------------
The date of this Prospectus is ____________________, 1995.
<PAGE> 4
***************************************************************************
* *
* INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. *
* A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED *
* WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY *
* NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE *
* REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT *
* CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY *
* NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH *
* SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO *
* REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH *
* STATE. *
* *
***************************************************************************
<PAGE> 5
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Such reports, proxy statements and
other information can be inspected and copied at the Public Reference Section
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549: Chicago Regional Office, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661; and New York Regional Office, 7 World Trade Center, New
York, New York 10048. In addition, the Company's Common Shares are listed on
the New York Stock Exchange, Inc. and similar information about the Company can
be inspected and copied at prescribed rates at the offices of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration statement on
Form S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Securities being offered
hereby. For further information with respect to the Company and the Securities
offered hereby, reference is made to the Registration Statement and exhibits
thereto. Statements contained in this Prospectus as to the contents of any
contract or other documents are not necessarily complete, and in each instance,
reference is made to the copy of such contract or documents filed as an exhibit
to the Registration Statement, each such statement being qualified in all
respects by such reference.
--------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File
No. 1-9876) are incorporated in this Prospectus by reference and are made a
part hereof:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1993.
2. The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31, June 30 and September 30, 1994.
Each document filed subsequent to the date of this Prospectus pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the
termination of the offering of all Securities to which this Prospectus relates
shall be deemed to be incorporated by reference in this Prospectus and shall be
a part hereof from the date of filing of such document.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement herein, in any
accompanying Prospectus Supplement relating to a specific offering of
Securities or in any other subsequently filed document that is also
incorporated or deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus or any accompanying Prospectus Supplement. Subject to the
foregoing, all information appearing in this Prospectus and each accompanying
Prospectus Supplement is qualified in its entirety by the information appearing
in the documents incorporated by reference.
--------------------
UPON WRITTEN OR ORAL REQUEST OF ANY PERSON TO WHOM A PROSPECTUS IS
DELIVERED, THE COMPANY WILL PROVIDE, WITHOUT CHARGE, A COPY OF THE DOCUMENTS
WHICH HAVE BEEN INCORPORATED BY REFERENCE IN THIS PROSPECTUS. REQUESTS FOR
SUCH DOCUMENTS SHOULD BE DIRECTED TO M. CANDACE DUFOUR, VICE PRESIDENT AND
SECRETARY, WEINGARTEN REALTY INVESTORS, 2600 CITADEL PLAZA DRIVE, HOUSTON,
TEXAS 77008, TELEPHONE (713) 866-6000.
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<PAGE> 6
THE COMPANY
Weingarten Realty Investors has owned and developed shopping centers and
other commercial real estate since its organization in 1948. The Company's
investment focus has been and continues to be on shopping centers. As of
December 31, 1994, Trust Managers and executive officers of the Company
controlled 3,978,883 Common Shares or approximately 15.0% of the outstanding
Common Shares.
Initially, the Company grew primarily through development of properties,
with 91 of the 161 operating properties having been developed by the Company.
With respect to these projects, the Company acquired the raw land, constructed
buildings and leased the store spaces. The Company generally develops new
projects only when it has leases in place with financially strong and viable
anchor retailers. More recently, the Company has expanded its property base
primarily through acquisitions of properties previously developed by other
parties which satisfy investment criteria similar to those applicable to new
developments. Management believes that the majority of the Company's growth in
the immediate future will continue to result from acquisitions, due to the
continuing over-supply of developed real estate projects, the current lack of
capital for most of the Company's competitors to finance new investments and
the prevailing market discount from reproduction costs for new projects. As
part of its acquisition strategy, the Company seeks under-managed properties in
good locations, the value of which can be enhanced through remerchandising and
renovating. Geographically, the Company considers expansion in areas where it
currently has a presence or where it can acquire within a reasonable time frame
a sufficient number of properties that meet its investment criteria.
An equally important part of the Company's strategy has been to improve
the cash flow and value of its existing portfolio through: (i) maximizing
rental revenues, occupancy and retail sales, (ii) operating the properties in
the most cost effective manner and (iii) renovating and remerchandising the
tenant mix with respect to selected properties.
Management believes that its overall debt structure is conservative.
Based upon the approximately $1 billion market value of the Company's equity at
December 31, 1994, the Company's debt represented less than 23% of its total
market capitalization. The Company's ratio of funds from operations before
interest expense to fixed charges for the nine months ended September 30, 1994
was approximately 6.23 to 1.0.
The Company conducts its operations in order to qualify as a REIT under
the Internal Revenue Code of 1986, as amended. The Company's principal
executive offices are located at 2600 Citadel Plaza Drive, Houston, Texas
77008, and its telephone number is (713) 866-6000. As used herein, the term
"Company" refers to Weingarten Realty Investors and its predecessors unless the
context otherwise specifically requires.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement for
any offering of Securities, the Company intends to use the majority of the net
proceeds from the sale of Securities offered by the Company to repay debt
(including repayments of amounts drawn on lines of credit for property
acquisitions), make improvements to properties, acquire or develop additional
properties and for working capital. Pending use for the foregoing purposes,
such proceeds may be invested in short-term, interest-bearing time or demand
deposits with financial institutions, cash items or qualified government
securities.
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<PAGE> 7
CERTAIN RATIOS
The following table sets forth the Company's consolidated ratios of
earnings to fixed charges and of funds from operations before interest expense
to fixed charges for the periods shown:
<TABLE>
<CAPTION>
YEARS ENDED NINE MONTHS ENDED
DECEMBER 31, SEPTEMBER 30,
---------------------------------------- -----------------
1989 1990 1991 1992 1993 1993 1994
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges ........................ 1.47x 1.68x 1.72x 1.89x 3.94x 3.77x 4.26x
Ratio of Funds from Operations
Before Interest
Expense to Fixed
Charges ........................ 2.15x 2.42x 2.52x 2.82x 5.83x 5.61x 6.23x
</TABLE>
The ratios of earnings to fixed charges were computed by dividing
earnings by fixed charges. The ratios of funds from operations before interest
expense to fixed charges were computed by dividing funds from operations before
interest expense by fixed charges. For these purposes, earnings consist of
income before extraordinary items and fixed charges, and funds from operations
before interest expense consists of net income plus depreciation, amortization
and extraordinary charges, gains and losses on sales of properties and
securities. Fixed charges consist of interest expense (including interest
costs capitalized), amortization of debt costs and the portion of rent expense
representing an interest factor.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Senior Securities are to be issued under an indenture (the "Senior
Indenture"), to be entered into between the Company and Texas Commerce Bank
National Association, as Trustee, and the Subordinated Securities are to be
issued under a separate indenture (the "Subordinated Indenture"), also to be
entered into between the Company and Texas Commerce Bank National Association,
as Trustee. The term "Trustee" as used herein shall refer to Texas Commerce
Bank National Association or such other bank as the Company may appoint as
trustee pursuant to the terms of the applicable Indenture, in its or their
capacity as Trustee for the Senior Securities or the Subordinated Securities,
as appropriate. The forms of the Senior Indenture and the Subordinated
Indenture (being sometimes referred to herein collectively as the "Indentures"
and individually as an "Indenture") are filed as exhibits to the Registration
Statement. The Indentures are subject to and governed by the Trust Indenture
Act of 1939, as amended (the "TIA"), and may be supplemented from time to time
following execution. The statements made under this heading relating to the
Debt Securities and the Indentures are summaries of the provisions thereof and
do not purport to be complete and are qualified in their entirety by reference
to the Indentures and such Debt Securities. Parenthetical references below are
to the Indentures and capitalized terms used but not defined herein shall have
the respective meanings set forth in the Indentures.
TERMS
The Debt Securities will be direct, unsecured obligations of the
Company. The indebtedness represented by the Senior Securities will rank
equally with all other unsecured and unsubordinated indebtedness of the
Company. The indebtedness represented by the Subordinated Securities will be
subordinated in right of payment to the prior payment in full of the Senior
Debt of the Company as described under "Subordination."
Each Indenture provides that the Debt Securities may be issued without
limit as to aggregate principal amount, in one or more series, in each case as
established from time to time in, or pursuant
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<PAGE> 8
to authority granted by, a resolution of the Board of Trust Managers of the
Company or as established in one or more indentures supplemental to such
Indenture. All Debt Securities of one series need not be issued at the same
time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders of the Debt Securities of such series, for issuances of
additional Debt Securities of such series (Section 301 of each Indenture).
Each Indenture provides that there may be more than one Trustee
thereunder, each with respect to one or more series of Debt Securities. Any
Trustee under either Indenture may resign or be removed with respect to one or
more series of Debt Securities, and a successor Trustee may be appointed to act
with respect to such series (Section 608 of each Indenture). In the event that
two or more persons are acting as Trustee with respect to different series of
Debt Securities, each such Trustee shall be a Trustee of a trust under the
applicable Indenture separate and apart from the trust administered by any
other Trustee (Section 609 of each Indenture), and, except as otherwise
indicated herein, any action described herein to be taken by each Trustee may
be taken by each such Trustee with respect to, and only with respect to, the
one or more series of Debt Securities for which it is Trustee under the
applicable Indenture.
Reference is made to the Prospectus Supplement relating to the series of
Debt Securities being offered for the specific terms thereof, including:
(1) the title of such Debt Securities and whether such Debt
Securities are Senior Securities or Subordinated
Securities;
(2) the aggregate principal amount of such Debt Securities and
any limit on such aggregate principal amount;
(3) the percentage of the principal amount at which such Debt
Securities will be issued and, if other than the principal
amount thereof, the portion of the principal amount
thereof payable upon declaration of acceleration of the
maturity thereof, or (if applicable) the portion of the
principal amount of such Debt Securities which is
convertible into Common Shares or Preferred Shares, or the
method by which any such portion shall be determined;
(4) if convertible, in connection with the preservation of the
Company's status as a REIT, any applicable limitations on
the ownership or transferability of the Common Shares or
Preferred Shares into which such Debt Securities are
convertible;
(5) the date or dates, or the method for determining such date
or dates, on which the principal of such Debt Securities
will be payable;
(6) the rate or rates (which may be fixed or variable), or the
method by which such rate or rates shall be determined, at
which such Debt Securities will bear interest, if any;
(7) the date or dates, or the method for determining such date
or dates, from which any such interest will accrue, the
Interest Payment Dates on which any such interest will be
payable, the Regular Record Dates for such Interest
Payment Dates, or the method by which such dates shall be
determined, the Persons to whom such interest shall be
payable, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve
30-day months;
(8) the place or places where the principal of (and premium,
if any) and interest, if any, on such Debt Securities will
be payable, where such Debt Securities may be surrendered
for conversion or registration of transfer or exchange and
where notices or demands to or upon the Company in respect
of such Debt Securities and the applicable Indenture may
be served;
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<PAGE> 9
(9) the period or periods within which, the price or prices at
which and the other terms and conditions upon which such
Debt Securities may be redeemed, as a whole or in part, at
the option of the Company, if the Company is to have such
an option;
(10) the obligation, if any, of the Company to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund
or analogous provision or at the option of a Holder
thereof, and the period or periods within which, the price
or prices at which and the other terms and conditions upon
which such Debt Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such
obligation;
(11) if other than U.S. dollars, the currency or currencies in
which such Debt Securities are denominated and payable,
which may be a foreign currency or units of two or more
foreign currencies or a composite currency or currencies,
and the terms and conditions relating thereto;
(12) whether the amount of payments of principal of (and
premium, if any) or interest, if any, on such Debt
Securities may be determined with reference to an index,
formula or other method (which index, formula or method
may, but need not be, based on a currency, currencies,
currency unit or units or composite currency or
currencies) and the manner in which such amounts shall be
determined;
(13) any additions to, modifications of or deletions from the
terms of such Debt Securities with respect to the Events
of Default or covenants set forth in the applicable
Indenture;
(14) whether such Debt Securities will be issued in
certificated or book-entry form;
(15) whether such Debt Securities will be in registered or
bearer form, and if in registered form, the denominations
thereof if other than $1,000 and any integral multiple
thereof and, if in bearer form, the denominations thereof
and terms and conditions relating thereto;
(16) the applicability, if any, of the defeasance and covenant
defeasance provisions of Article XIV of the applicable
Indenture;
(17) the terms, if any, upon which such Debt Securities may be
convertible into Common Shares or Preferred Shares of the
Company and the terms and conditions upon which such
conversion will be effected, including, without
limitation, the initial conversion price or rate and the
conversion period;
(18) whether and under what circumstances the Company will pay
Additional Amounts as contemplated in the applicable
Indenture on such Debt Securities in respect of any tax,
assessment or governmental charge and, if so, whether the
Company will have the option to redeem such Debt
Securities in lieu of making such payment; and
(19) any other terms of such Debt Securities not inconsistent
with the provisions of the applicable Indenture (Section
301 of each Indenture).
The Debt Securities may provide for less than the entire principal
amount thereof to be payable upon declaration of acceleration of the maturity
thereof ("Original Issue Discount Securities") (Section 502 of each Indenture).
Special U.S. federal income tax, accounting and other considerations applicable
to Original Issue Discount Securities will be described in the applicable
Prospectus Supplement.
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<PAGE> 10
DENOMINATIONS, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable Prospectus Supplement, the
Debt Securities of any series will be issuable in denominations of $1,000 and
integral multiples thereof (Section 302 of each Indenture).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and applicable premium, if any) and interest, if any, on any
series of Debt Securities will be payable at the corporate trust office of the
Trustee, initially located at 80 Broad Street, 4th Floor, New York, New York
10004 in the case of each of the Senior Securities and the Subordinated
Securities, provided that, at the option of the Company, payment of interest
may be made by check mailed to the address of the Person entitled thereto as it
appears in the Security Register or by wire transfer of funds to such Person at
an account maintained within the United States (Sections 301, 305, 306, 307 and
1002 of each Indenture).
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the applicable Regular Record
Date and may either be paid to the person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
applicable Trustee, notice whereof shall be mailed to each Holder of such Debt
Security not less than 10 days prior to such Special Record Date, or may be
paid at any time in any other lawful manner, all as more completely described
in the applicable Indenture (Section 307 of each Indenture).
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of such
Debt Securities at the corporate trust office of the applicable Trustee
referred to above. In addition, subject to certain limitations imposed upon
Debt Securities issued in book-entry form, the Debt Securities of any series
may be surrendered for conversion or registration of transfer or exchange at
the corporate trust office of the applicable Trustee referred to above. Every
Debt Security surrendered for conversion, registration of transfer or exchange
shall be duly endorsed or accompanied by a written instrument of transfer. No
service charge will be made for any registration of transfer or exchange of any
Debt Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith
(Section 305 of each Indenture). If the applicable Prospectus Supplement
refers to any transfer agent (in addition to the applicable Trustee) initially
designated by the Company with respect to any series of Debt Securities, the
Company may at any time rescind the designation of any such transfer agent or
approve a change in the location through which any such transfer agent acts,
except that the Company will be required to maintain a transfer agent in each
Place of Payment for such series. The Company may at any time designate
additional transfer agents with respect to any series of Debt Securities
(Section 1002 of each Indenture).
Neither the Company nor any Trustee shall be required to: (i) issue,
register the transfer of or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before any selection of
Debt Securities of that series to be redeemed and ending at the close of
business on the day of mailing of the relevant notice of redemption; (ii)
register the transfer of or exchange any Debt Security, or portion thereof,
called for redemption, except the unredeemed portion of any Debt Security being
redeemed in part; or (iii) issue, register the transfer of or exchange any Debt
Security that has been surrendered for repayment at the option of the Holder,
except the portion, if any, of such Debt Security not to be so repaid (Section
305 of each Indenture).
MERGER, CONSOLIDATION OR SALE
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any other
corporation or trust or entity provided that: (i) either the Company shall be
the continuing entity, or the successor entity (if other than the Company)
formed by or resulting from any such consolidation or merger or which shall
have received the transfer of such
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<PAGE> 11
assets shall expressly assume payment of the principal of (and premium, if any)
and interest, if any, on all of the Debt Securities and the due and punctual
performance and observance of all of the covenants and conditions contained in
each Indenture; (ii) immediately after giving effect to such transaction and
treating any indebtedness that becomes an obligation of the Company or any
Subsidiary as a result thereof as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default under the
Indenture, and no event which, after notice or the lapse of time, or both, would
become such an Event of Default, shall have occurred and be continuing; and
(iii) an officers' certificate and legal opinion covering such conditions shall
be delivered to each Trustee (Sections 801 and 803 of each Indenture).
CERTAIN COVENANTS
Limitations on Incurrence of Debt. The Company will not, and will not
permit any Subsidiary to, incur any Debt (as defined below) if, immediately
after giving effect to the incurrence of such Debt and the application of the
proceeds thereof, the aggregate principal amount of all outstanding Debt of the
Company and its Subsidiaries on a consolidated basis determined in accordance
with generally accepted accounting principles is greater than 60% of the sum of
(without duplication) (i) the Company's Total Assets (as defined below) as of
the end of the calendar quarter covered in the Company's Annual Report on Form
10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed
with the Commission (or, if such filing is not permitted under the Exchange
Act, with the Trustee) prior to the incurrence of such additional Debt and (ii)
the purchase price of any real estate assets or mortgages receivable acquired,
and the amount of any securities offering proceeds received (to the extent such
proceeds were not used to acquire real estate assets or mortgages receivable or
used to reduce Debt), by the Company or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Debt (Section 1004 of each Indenture).
In addition to the foregoing limitation on the incurrence of Debt, the
Company will not, and will not permit any Subsidiary to, incur any Debt secured
by any mortgage, lien, charge, pledge, encumbrance or security interest of any
kind upon any of the property of the Company or any Subsidiary if, immediately
after giving effect to the incurrence of such Debt and the application of the
proceeds thereof, the aggregate principal amount of all outstanding Debt of the
Company and its Subsidiaries on a consolidated basis which is secured by any
mortgage, lien, charge, pledge, encumbrance or security interest on property of
the Company or any Subsidiary is greater than 40% of the Company's Total Assets
(Section 1004 of each Indenture).
In addition to the foregoing limitations on the incurrence of Debt, the
Company will not, and will not permit any Subsidiary to, incur any Debt if the
ratio of Consolidated Income Available for Debt Service (as defined below) to
the Annual Service Charge (as defined below) for the four consecutive fiscal
quarters most recently ended prior to the date on which such additional Debt is
to be incurred shall have been less than 1.5, on a pro forma basis after giving
effect thereto and to the application of the proceeds therefrom, and calculated
on the assumption that: (i) such Debt and any other Debt incurred by the
Company and its Subsidiaries since the first day of such four-quarter period
and the application of the proceeds therefrom, including to refinance other
Debt, had occurred at the beginning of such period; (ii) the repayment or
retirement of any other Debt by the Company and its Subsidiaries since the
first day of such four-quarter period had been incurred, repaid or retired at
the beginning of such period (except that, in making such computation, the
amount of Debt under any revolving credit facility shall be computed based upon
the average daily balance of such Debt during such period); (iii) in the case
of Acquired Debt (as defined below) or Debt incurred in connection with any
acquisition since the first day of such four-quarter period, the related
acquisition had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition being included in such
pro forma calculation; and (iv) in the case of any acquisition or disposition
by the Company or its Subsidiaries of any asset or group of assets since the
first day of such four-quarter period, whether by merger, stock purchase or
sale, or asset purchase or sale, such acquisition or disposition or any related
repayment of Debt had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition or disposition being
included in such pro forma calculation (Section 1004 of each Indenture).
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Existence. Except as permitted under "Merger, Consolidation or Sale,"
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its legal existence, rights (charter and
statutory) and franchises; provided, however, that the Company shall not be
required to preserve any right or franchise if it determines that the
preservation thereof is no longer desirable in the conduct of its business
(Section 1005 of each Indenture).
Maintenance of Properties. The Company will cause all of its material
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times (Section 1006 of each Indenture).
Insurance. The Company will keep, and will cause each of its
Subsidiaries to keep, all of its insurable properties insured against loss or
damage in an amount at least equal to their then full insurable value with
insurers of recognized responsibility and, if such insurer has publicly rated
debt, the rating for such debt must be at least investment grade with a
nationally recognized rating agency) (Section 1007 of each Indenture).
Payment of Taxes and Other Claims. The Company will pay or discharge,
or cause to be paid or discharged, before the same shall become delinquent, (i)
all taxes, assessments and governmental charges levied or imposed upon it or
any Subsidiary or upon the income, profits or property of the Company or any
Subsidiary and (ii) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
(Section 1008 of each Indenture).
Provision of Financial Information. Whether or not the Company is
subject to Section 13 or 15(d) of the Exchange Act, the Company will, within 15
days of each of the respective dates by which the Company would have been
required to file annual reports, quarterly reports and other documents with the
Commission if the Company were so subject, (i) transmit by mail to all Holders
of Debt Securities, as their names and addresses appear in the Security
Register, without cost to such Holders, copies of the annual reports, quarterly
reports and other documents that the Company would have been required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the
Company were subject to such Sections, (ii) file with the applicable Trustee
copies of the annual reports, quarterly reports and other documents that the
Company would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Company were subject to such
Sections and (iii) promptly upon written request and payment of the reasonable
cost of duplication and delivery, supply copies of such documents to any
prospective Holder (Section 1009 of each Indenture).
Maintenance of Value of Unencumbered Assets to Unsecured Debt. The
Company will at all times maintain an Unencumbered Total Asset Value in an
amount of not less than 100% of the aggregate principal amount of all
outstanding Debt of the Company and its Subsidiaries that is unsecured (Section
1013 of each Indenture).
Limited Covenants in the Event of a Highly Leveraged Transaction. Other
than the covenants of the Company included in the Indentures as described
above, there are no covenants in the Indentures that will afford the holders of
Debt Securities protection in the event of a highly leveraged transaction or
similar transaction involving the Company. Restrictions on ownership and
transfers of the Company's Common Shares and Preferred Shares are designed to
preserve its status as a REIT and, therefore, may act to prevent or hinder a
change of control. See "Description of Preferred Shares" and "Description of
Common Shares." Reference is made to the applicable Prospectus Supplement for
information with respect to any deletions from, modifications of, or additions
to, the Events of Default
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or covenants of the Company that are described above, including any addition of
a covenant or other event risk provision or similar protection.
As used herein,
"Acquired Debt" means Debt of a Person (i) existing at the time such
Person becomes a Subsidiary or (ii) assumed in connection with the acquisition
of assets from such Person, in each case, other than Debt incurred in
connection with, or in contemplation of, such Person becoming a Subsidiary or
such acquisition. Acquired Debt shall be deemed to be incurred on the date of
the related acquisition of assets from any Person or the date the acquired
Person becomes a Subsidiary.
"Annual Service Charge" as of any date means the maximum amount which is
payable in any period for interest on, and original issue discount of, Debt of
the Company and its Subsidiaries and the amount of dividends which are payable
in respect of any Disqualified Stock (as defined below).
"Capital Shares" means, with respect to any Person, any capital shares
(including preferred shares), interests participations or other ownership
interests (however designated) of such Person and any rights (other than debt
securities convertible into or exchangeable for capital shares), warrants or
options to purchase any thereof.
"Consolidated Income Available for Debt Service" for any period means
Funds from Operations (as defined below) of the Company and its Subsidiaries
plus amounts which have been deducted for interest on Debt of the Company and
its Subsidiaries.
"Debt" of the Company or any Subsidiary means any indebtedness of the
Company, or any Subsidiary, other than contingent liabilities (except to the
extent set forth in (iii) below), in respect of (without duplication) (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) the reimbursement obligations, contingent or otherwise, in
connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations or obligations under any title
retention agreement, (iv) the principal amount of all obligations of the
Company or any Subsidiary with respect to redemption, repayment or other
repurchase of any Disqualified Stock or (v) 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 generally
accepted accounting principles to the extent, in the case of items of
indebtedness under (i) through (iii) above, that any such items (other than
letters of credit) would appear as a liability on the Company's consolidated
balance sheet in accordance with generally accepted accounting principles, but
does not include any obligation of the Company or any Subsidiary to be liable
for, or to pay, as obligor, guarantor or otherwise, Debt of another Person
(other than the Company or any Subsidiary) unless and until the Company or such
Subsidiary shall become directly liable in respect thereof.
"Disqualified Stock" means, with respect to any Person, any Capital
Shares of such Person which by the terms of such Capital Shares (or by the
terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise (i)
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, (ii) is convertible into or exchangeable or exercisable for Debt or
Disqualified Stock or (iii) is redeemable at the option of the holder thereof,
in whole or in part, in each case on or prior to the Stated Maturity of the
Debt Securities.
"Funds from Operations" for any period means net income plus
depreciation, amortization and extraordinary charges,excluding gains and losses
on sales of properties and securities.
"Total Assets" as of any date means the sum of (i) the Company's
Undepreciated Real Estate Assets and (ii) all other assets of the Company
determined in accordance with generally accepted accounting principles (but
excluding goodwill and unamortized debt costs).
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"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Company
and its Subsidiaries on such date, before depreciation and amortization
determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Unencumbered Total Asset Value" as of any date shall mean the sum of
the Company's Total Assets which are unencumbered by any mortgage, lien,
charge, pledge, or security interest.
EVENTS OF DEFAULT, NOTICE AND WAIVER
Each Indenture provides that the following events are "Events of
Default" with respect to any series of Debt Securities issued thereunder: (i)
default for 30 days in the payment of any installment of interest on any Debt
Security of such series; (ii) default in the payment of the principal of (or
premium, if any, on) any Debt Security of such series at its Maturity; (iii)
default in making any sinking fund payment as required for any Debt Security of
such series; (iv) default in the performance or breach of any other covenant or
warranty of the Company contained in the Indenture (other than a covenant added
to the Indenture solely for the benefit of a series of Debt Securities issued
thereunder other than such series), continued for 60 days after written notice
as provided in the applicable Indenture; (v) a default under any bond,
debenture, note or other evidence of indebtedness for money borrowed by the
Company (including obligations under leases required to be capitalized on the
balance sheet of the lessee under generally accepted accounting principles but
not including any indebtedness or obligations for which recourse is limited to
property purchased or property mortgaged) in an aggregate principal amount in
excess of $10,000,000 or under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (including such leases but not
including such indebtedness or obligations for which recourse is limited to
property purchased) in an aggregate principal amount in excess of $10,000,000
by the Company, whether such indebtedness now exists or shall hereafter be
created, which default shall have resulted in such indebtedness becoming or
being declared due and payable prior to the date on which it would otherwise
have become due and payable or such obligations being accelerated, without such
acceleration having been rescinded or annulled; (vi) certain events of
bankruptcy, insolvency or reorganization, or court appointment of a receiver,
liquidator or trustee of the Company or any Significant Subsidiary or either of
their properties; and (vii) any other Event of Default provided with respect to
a particular series of Debt Securities (Section 501 of each Indenture). The
term "Significant Subsidiary" means each significant subsidiary (as defined in
Regulation S-X promulgated under the Securities Act) of the Company.
If an Event of Default under either Indenture with respect to Debt
Securities of any series at the time Outstanding occurs and is continuing, then
in every such case the applicable Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Debt Securities of that series may
declare the principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms thereof) of all of the Debt
Securities of that series to be due and payable immediately by written notice
thereof to the Company (and to the applicable Trustee if given by the Holders).
However, at any time after such a declaration of acceleration with respect to
Debt Securities of such series (or of all Debt Securities then Outstanding
under either Indenture, as the case may be) has been made, but before a
judgment or decree for payment of the money due has been obtained by the
applicable Trustee, the Holders of not less than a majority in principal amount
of Outstanding Debt Securities of such series (or of all Debt Securities then
Outstanding under the applicable Indenture, as the case may be) may rescind and
annul such declaration and its consequences if (i) the Company shall have
deposited with the applicable Trustee all required payments of the principal of
(and premium, if any) and interest on the Debt Securities of such series (or of
all Debt Securities then Outstanding under the applicable Indenture, as the
case may be), plus certain fees, expenses, disbursements and advances of the
applicable Trustee and (ii) all Events of Default, other than the non-payment
of accelerated principal (or a specified portion thereof), with respect to Debt
Securities of such series (or of all Debt Securities then Outstanding under the
applicable Indenture, as the case may be) have been cured or waived as provided
in each Indenture (Section 502 of each Indenture). Each Indenture also
provides that the Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any
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<PAGE> 15
series (or of all Debt Securities then Outstanding under the applicable
Indenture, as the case may be) may waive any past default with respect to such
series and its consequences, except a default (x) in the payment of the
principal of (or premium, if any) or interest, if any, on any Debt Security of
such series or (y) in respect of a covenant or provision contained in the
applicable Indenture that cannot be modified or amended without the consent of
the Holders of each Outstanding Debt Security affected thereby (Section 513 of
each Indenture).
Each Trustee is required to give notice to the Holders of Debt
Securities within 90 days of a default under the applicable Indenture unless
such default shall have been cured or waived; provided, however, that such
Trustee may withhold notice to the Holders of any Series of Debt Securities of
any default with respect to such series (except a default in the payment of the
principal of (or premium, if any) or interest, if any, on any Debt Security of
such series or in the payment of any sinking fund installment in respect of any
Debt Security of such series) if the Responsible Officers of such Trustee
consider such withholding to be in the interest of such Holders (Section 601 of
each Indenture).
Each Indenture provides that no Holders of Debt Securities of any series
may institute any proceedings, judicial or otherwise, with respect to such
Indenture or for any remedy thereunder, except in the case of failure of the
applicable Trustee, for 60 days, to act after it has received a written request
to institute proceedings in respect of an Event of Default from the Holders of
not less than 25% in principal amount of the Outstanding Debt Securities of
such series, as well as an offer of indemnity reasonably satisfactory to it
(Section 507 of each Indenture). This provision will not prevent, however, any
Holder of Debt Securities from instituting suit for the enforcement of payment
of the principal of (and premium, if any) and interest, if any, on such Debt
Securities at the respective due dates thereof (Section 508 of each Indenture).
Subject to provisions in each Indenture relating to its duties in case
of default, neither Trustee is under an obligation to exercise any of its
rights or powers under such Indenture at the request or direction of any
Holders of any series of Debt Securities then Outstanding under such Indenture,
unless such Holders shall have offered to the Trustee thereunder reasonable
security or indemnity (Section 602 of each Indenture). The Holders of not less
than a majority in principal amount of the Outstanding Debt Securities of any
series (or of all Debt Securities then Outstanding under each Indenture, as the
case may be) shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the applicable Trustee,
or of exercising any trust or power conferred upon such Trustee. However, each
Trustee may refuse to follow any direction which is in conflict with any law or
the applicable Indenture, which may involve such Trustee in personal liability
or which may be unduly prejudicial to the Holders of Debt Securities of such
series not joining therein (Section 512 of each Indenture).
Within 120 days after the close of each fiscal year, the Company must
deliver to each Trustee a certificate, signed by one of several specified
officers, stating whether or not such officer has knowledge of any default
under the applicable Indenture and, if so, specifying each such default and the
nature and status thereof (Section 1010 of each Indenture).
MODIFICATION OF THE INDENTURES
Modification and amendment of either Indenture may be made only with the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Debt Securities issued under such Indenture which are affected by
such modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each such Debt Security
affected thereby, (i) change the Stated Maturity of the principal of, or any
installment of interest (or premium, if any) on, any such Debt Security, (ii)
reduce the principal amount of, or the rate or amount of interest on, or any
premium payable on redemption of, any such Debt Security, or reduce the amount
of principal of an Original Issue Discount Security that would be due and
payable upon declaration of acceleration of the maturity thereof or would be
provable in bankruptcy, or adversely affect any right of repayment of the
Holder of any such Debt Security, (iii) change the Place of Payment, or the
coin or currency, for payment of principal of, premium, if any, or interest, if
any, on any such Debt Security, (iv) impair the right to institute suit for the
enforcement of any payment on or with respect to any such Debt Security, (v)
reduce the above-stated percentage of Outstanding Debt
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<PAGE> 16
Securities of any series necessary to modify or amend the applicable Indenture,
to waive compliance with certain provisions thereof or certain defaults and
consequences thereunder or to reduce the quorum or voting requirements set forth
in the applicable Indenture, or (vi) modify any of the foregoing provisions or
any of the provisions relating to the waiver of certain past defaults or certain
covenants, except to increase the required percentage to effect such action or
to provide that certain other provisions may not be modified or waived without
the consent of the Holder of such Debt Security (Section 902 of each Indenture).
The Holders of not less than a majority in principal amount of
Outstanding Debt Securities issued under either Indenture have the right to
waive compliance by the Company with certain covenants in such Indenture
(Section 1012 of each Indenture).
Modifications and amendments of either Indenture may be made by the
Company and the respective Trustee thereunder without the consent of any Holder
of Debt Securities for any of the following purposes: (i) to evidence the
succession of another Person to the Company as obligor under such Indenture;
(ii) to add to the covenants of the Company for the benefit of the Holders of
all or any series of Debt Securities or to surrender any right or power
conferred upon the Company in such Indenture; (iii) to add Events of Default
for the benefit of the Holders of all or any series of Debt Securities; (iv) to
add or change any provisions of either Indenture to facilitate the issuance of,
or to liberalize certain terms of, Debt Securities in bearer form, or to permit
or facilitate the issuance of Debt Securities in uncertificated form, provided
that such action shall not adversely affect the interests of the Holders of the
Debt Securities of any series in any material respect; (v) to change or
eliminate any provisions of either Indenture, provided that any such change or
elimination shall become effective only when there are no Debt Securities
Outstanding of any series created prior thereto which are entitled to the
benefit of such provision; (vi) to secure the Debt Securities; (vii) to
establish the form or terms of Debt Securities of any series, including the
provisions and procedures, if applicable, for the conversion of such Debt
Securities into Common Shares or Preferred Shares of the Company; (viii) to
provide for the acceptance or appointment of a successor Trustee or facilitate
the administration of the trusts under either Indenture by more than one
Trustee; (ix) to cure any ambiguity, defect or inconsistency in either
Indenture, provided that such action shall not adversely affect the interests
of Holders of Debt Securities of any series issued under such Indenture; or (x)
to supplement any of the provisions of either Indenture to the extent necessary
to permit or facilitate defeasance and discharge of any series of such Debt
Securities, provided that such action shall not adversely affect the interests
of the Holders of the Debt Securities of any series (Section 901 of each
Indenture).
SUBORDINATION
Upon any distribution to creditors of the Company in a liquidation,
dissolution or reorganization, the payment of the principal of and interest on
the Subordinated Securities will be subordinated to the extent provided in the
Subordinated Indenture in right of payment to the prior payment in full of all
Senior Debt (Sections 1601 and 1602 of the Subordinated Indenture), but the
obligation of the Company to make payment of the principal of and interest on
the Subordinated Securities will not otherwise be affected (Section 1608 of the
Subordinated Indenture). No payment of principal or interest may be made on
the Subordinated Securities at any time if a default on Senior Debt exists that
permits the holders of such Senior Debt to accelerate its maturity and the
default is the subject of judicial proceedings or the Company receives notice
of the default (Section 1603 of the Subordinated Indenture). After all Senior
Debt is paid in full and until the Subordinated Securities are paid in full,
Holders will be subrogated to the rights of holders of Senior Debt to the
extent that distributions otherwise payable to Holders have been applied to
the payment of Senior Debt (Section 1607 of the Subordinated Indenture). By
reason of such subordination, in the event of a distribution of assets upon
insolvency, certain general creditors of the Company may recover more, ratably,
than holders of the Subordinated Securities.
Senior Debt is defined in the Subordinated Indenture as the principal of
and interest on, or substantially similar payments to be made by the Company in
respect of, the following, whether outstanding at the date of execution of the
Subordinated Indenture or thereafter incurred, created or assumed: (i)
indebtedness of the Company for money borrowed or represented by purchase-money
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<PAGE> 17
obligations, (ii) indebtedness of the Company evidenced by notes, debentures or
bonds, or other securities issued under the provisions of an indenture, fiscal
agency agreement or other instrument, (iii) obligations of the Company as
lessee under leases of property either made as part of any sale and leaseback
transaction to which the Company is a party or otherwise, (iv) indebtedness of
partnerships and joint ventures which is included in the consolidated financial
statements of the Company, (v) indebtedness, obligations and liabilities of
others in respect of which the Company is liable contingently or otherwise to
pay or advance money or property or as guarantor, endorser or otherwise or
which the Company has agreed to purchase or otherwise acquire, and (vi) any
binding commitment of the Company to fund any real estate investment or to fund
any investment in any entity making such real estate investment, in each case
other than (A) any such indebtedness, obligation or liability referred to in
clauses (i) through (vi) above as to which, in the instrument creating or
evidencing the same pursuant to which the same is outstanding, it is provided
that such indebtedness, obligation or liability is not superior in right of
payment to the Subordinated Securities or ranks pari passu with the
Subordinated Securities, (B) any such indebtedness, obligation or liability
which is subordinated to indebtedness of the Company to substantially the same
extent as or to a greater extent than the Subordinated Securities are
subordinated, and (C) the Subordinated Securities (Section 101 of the
Subordinated Indenture). At December 31, 1994, Senior Debt aggregated
approximately $239 million.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Under each Indenture, the Company may discharge certain obligations to
Holders of any series of Debt Securities issued thereunder that have not
already been delivered to the applicable Trustee for cancellation and that
either have become due and payable or will become due and payable within one
year (or scheduled for redemption within one year) by irrevocably depositing
with the applicable Trustee, in trust, funds in such currency or currencies,
currency unit or units or composite currency or currencies in which such Debt
Securities are payable in an amount sufficient to pay the entire indebtedness
on such Debt Securities in respect of principal (and premium, if any) and
interest to the date of such deposit (if such Debt Securities have become due
and payable) or to the Stated Maturity or Redemption Date, as the case may be
(Section 401 of each Indenture).
Each Indenture provides that, if the provisions of Article Fourteen
thereof are made applicable to the Debt Securities of or within any series
pursuant to Section 301 of such Indenture, the Company may elect either (i) to
defease and be discharged from any and all obligations with respect to such
Debt Securities (except for the obligation to pay Additional Amounts, if any,
upon the occurrence of certain events of tax, assessment or governmental charge
with respect to payments on such Debt Securities and the obligations to
register the transfer or exchange of such Debt Securities, to replace temporary
or mutilated, destroyed, lost or stolen Debt Securities, to maintain an office
or agency in respect of such Debt Securities and to hold moneys for payment in
trust) ("defeasance") (Section 1402 of each Indenture) or (ii) to be released
from its obligations with respect to such Debt Securities under Sections 1004
to 1009, inclusive, and Section 1013 of each Indenture (being the restrictions
described under "Certain Covenants") or, if provided pursuant to Section 301 of
each Indenture, its obligations with respect to any other covenant, and any
omission to comply with such obligations shall not constitute a default or an
Event of Default with respect to such Debt Securities ("covenant defeasance")
(Section 1403 of each Indenture), in either case upon the irrevocable deposit
by the Company with the applicable Trustee, in trust, of an amount, in such
currency or currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are payable at Stated Maturity, or
Government Obligations (as defined below), or both, applicable to such Debt
Securities which through the scheduled payment of principal and interest in
accordance with their terms will provide money in an amount sufficient to pay
the principal of (and premium, if any) and interest on such Debt Securities,
and any mandatory sinking fund or analogous payments thereon, on the scheduled
due dates therefor (Section 1404 of each Indenture).
Such a trust may only be established if, among other things, the Company
has delivered to the applicable Trustee an Opinion of Counsel (as specified in
each Indenture) to the effect that the Holders of such Debt Securities will
not recognize income, gain or loss for U.S. federal income tax purposes as a
result of such defeasance or covenant defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance or covenant defeasance had
not occurred, and such Opinion of Counsel, in the case of
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<PAGE> 18
defeasance, must refer to and be based upon a ruling of the Internal Revenue
Service or a change in applicable U.S. federal income tax law occurring after
the date of the Indenture (Section 1404 of each Indenture).
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Debt Securities of a particular series are
payable, for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued
the Foreign Currency in which the Debt Securities of such series are payable,
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specified payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt (Section 101 of each
Indenture).
Unless otherwise provided in the applicable Prospectus Supplement, if
after the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to Debt Securities of any
series, (i) the Holder of a Debt Security of such series is entitled to, and
does, elect pursuant to Section 301 of either Indenture or the terms of such
Debt Security to receive payment in a currency, currency unit or composite
currency other than that in which such deposit has been made in respect of such
Debt Security, or (ii) a Conversion Event (as defined below) occurs in respect
of the currency, currency unit or composite currency in which such deposit has
been made, the indebtedness represented by such Debt Security 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 on such Debt Security as
they become due out of the proceeds yielded by converting the amount so
deposited in respect of such Debt Security into the currency, currency unit or
composite currency in which such Debt Security becomes payable as a result of
such election or such cessation of usage based on the applicable market
exchange rate (Section 1405 of each Indenture). "Conversion Event" means the
cessation of use of (i) a currency, currency unit or composite currency both by
the government of the country which issued such currency and for the settlement
of transactions by a central bank or other public institutions of or within the
international banking community, (ii) the European Currency Unit ("ECU") both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit or composite currency other than the ECU for the purposes of which it was
established. Unless otherwise provided in the applicable Prospectus
Supplement, all payments of principal of (and premium, if any) and interest, if
any, on any Debt Security that is payable in a Foreign Currency that ceases to
be used by its government of issuance shall be made in U.S. dollars (Section
101 of each Indenture).
In the event that the Company effects covenant defeasance with respect
to any Debt Securities and such Debt Securities are declared due and payable
because of the occurrence of any Event of Default other than the Event of
Default described in clause (iv) under "Events of Default, Notice and Waiver"
with respect to Sections 1004 through 1009, inclusive, and Section 1013 of each
Indenture (which Sections would no longer be applicable to such Debt
Securities) or described in clause (vii) under "Events of Default, Notice and
Waiver" with respect to any other covenant as to which there has been covenant
defeasance, the amount in such currency, currency unit or composite currency in
which such Debt Securities are payable, and Government Obligations on deposit
with the applicable Trustee, will be sufficient to pay amounts due on such Debt
Securities at the time of their Stated Maturity but may not be sufficient to
pay amounts due on such Debt Securities at the time of the acceleration
resulting from such Event of Default. However, the Company would remain liable
to make payment of such amounts due at the time of acceleration.
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The applicable Prospectus Supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance,
including any modifications to the provisions described above, with respect to
the Debt Securities of or within a particular series.
CONVERSION RIGHTS
The terms and conditions, if any, upon which the Debt Securities are
convertible into Common Shares or Preferred Shares will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include
whether such Debt Securities are convertible into Common Shares or Preferred
Shares, the conversion price (or manner of calculation thereof), the conversion
period, provisions as to whether conversion will be at the option of the
Holders or the Company, the events requiring an adjustment of the conversion
price and provisions affecting conversion in the event of the redemption of
such Debt Securities.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities (the "Global Securities") that will be
deposited with, or on behalf of, a depositary (the "Depositary") identified in
the applicable Prospectus Supplement relating to such series. Global
Securities may be issued in either registered or bearer form and in either
temporary or permanent form. The specific terms of the depositary arrangement
with respect to a series of Debt Securities will be described in the applicable
Prospectus Supplement relating to such series.
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DESCRIPTION OF PREFERRED SHARES
GENERAL
The Company is authorized to issue 10,000,000 preferred shares of
beneficial interest, $.03 par value per share (the "Preferred Shares"), of
which no Preferred Shares were outstanding at February 8, 1995.
The following description of the Preferred Shares sets forth certain
general terms and provisions of the Preferred Shares to which any Prospectus
Supplement may relate. The statements below describing the Preferred Shares
are in all respects subject to and qualified in their entirety by reference to
the applicable provisions of the Company's Amended and Restated Declaration of
Trust (the "Declaration of Trust") and Bylaws and applicable statement of
designations (the "Statement of Designations").
TERMS
Subject to the limitations prescribed by the Declaration of Trust, the
Board of Trust Managers is authorized to fix the number of shares constituting
each series of Preferred Shares and the designations, preferences, conversion,
exchange or other rights, participations, voting powers, options, restrictions,
limitations, special rights or relations, limitations as to dividends,
qualifications, terms and conditions of redemption and such other subjects or
matters as may be fixed by resolution of the Board of Trust Managers. The
Preferred Shares will, when issued, be fully paid and nonassessable by the
Company (except as described under "Shareholder Liability" below) and will have
no preemptive rights.
Reference is made to the Prospectus Supplement relating to the Preferred
Shares offered thereby for specific terms, including:
1. The title and stated value of such Preferred Shares;
2. The number of such Preferred Shares offered, the liquidation
preference per share and the offering price of such Preferred
Shares;
3. The dividend rate(s), period(s) and/or payment date(s) or
method(s) of calculation thereof applicable to such Preferred
Shares;
4. The date from which dividends on such Preferred Shares shall
accumulate, if applicable;
5. The procedures for any auction and remarketing, if any, for such
Preferred Shares;
6. The provision for a sinking fund, if any, for such Preferred
Shares;
7. The provision for redemption, if applicable, of such Preferred
Shares;
8. Any listing of such Preferred Shares on any securities exchange;
9. The terms and conditions, if applicable, upon which such
Preferred Shares will be convertible into Common Shares of the
Company, including the conversion price (or manner of calculation
thereof);
10. Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Shares;
11. A discussion of federal income tax considerations applicable to
such Preferred Shares;
12. The relative ranking and preferences of such Preferred Shares as
to dividend rights and rights upon liquidation, dissolution or
winding up of the affairs of the Company;
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13. Any limitations on issuance of any series of Preferred Shares
ranking senior to or on a parity with such series of Preferred
Shares as to dividend rights and rights upon liquidation,
dissolution or winding up of the affairs of the Company; and
14. Any limitations on direct or beneficial ownership and restriction
on transfer, in each case as may be appropriate to preserve the
status of the Company as a REIT.
RANK
Unless otherwise specified in the Prospectus Supplement, the Preferred
Shares will, with respect to dividend rights and rights upon liquidation,
dissolution or winding up of the Company, rank (i) senior to all classes or
series of Common Shares or other Capital Shares of the Company, and to all
equity securities ranking junior to such Preferred Shares, (ii) on a parity
with all equity securities issued by the Company the terms of which
specifically provide that such equity securities rank on a parity with the
Preferred Shares, and (iii) junior to all equity securities issued by the
Company the terms of which specifically provide that such equity securities
rank senior to the Preferred Shares. The term "equity securities" does not
include convertible debt securities.
DIVIDENDS
Holders of the Preferred Shares of each series will be entitled to
receive, when, as and if declared by the Board of Trust Managers of the
Company, out of assets of the Company legally available for payment, cash
dividends at such rates and on such dates as will be set forth in the
applicable Prospectus Supplement. Each such dividend shall be payable to
Holders of record as they appear on the share transfer books of the Company on
such record dates as shall be fixed by the Board of Trust Managers of the
Company.
Dividends on any series of the Preferred Shares may be cumulative or
noncumulative, as provided in the applicable Prospectus Supplement. Dividends,
if cumulative, will be cumulative from and after the date set forth in the
applicable Prospectus Supplement. If the Board of Trust Managers of the
Company fails to declare a dividend payable on a dividend payment date on any
series of the Preferred Shares for which dividends are noncumulative, then the
holders of such series of the Preferred Shares will have no right to receive a
dividend in respect of the dividend period ending on such dividend payment
date, and the Company will have no obligation to pay the dividend accrued for
such period, whether or not dividends on such series are declared payable on
any future dividend payment date.
If Preferred Shares of any series are outstanding, no dividends will be
declared or paid or set apart for payment on the Preferred Shares of the
Company of any other series ranking, as to dividends, on a parity with or
junior to the Preferred Shares of such series for any period unless (i) if such
series of Preferred Shares has a cumulative dividend, full cumulative dividends
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on the Preferred
Shares of such series for all past dividend periods and the then current
dividend period or (ii) if such series of Preferred Shares does not have a
cumulative dividend, full dividends for the then current dividend period have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on the Preferred
Shares of such series. When dividends are not paid in full (or a sum
sufficient for such full payment is not so set apart) upon Preferred Shares of
any series and the shares of any other series of Preferred Shares ranking on a
parity as to dividends with the Preferred Shares of such series, all dividends
declared upon Preferred Shares of such series and any other series of Preferred
Shares ranking on a parity as to dividends with such Preferred Shares shall be
declared pro rata so that the amount of dividends declared per Preferred Share
of such series and such other series of Preferred Shares shall in all cases
bear to each other the same ratio that accrued dividends per share on the
Preferred Shares of such series (which shall not include any accumulation in
respect of unpaid dividends for prior dividend periods if such Preferred Shares
do not have a cumulative dividend) and such other series of Preferred Shares
bear to each other. No interest, or sum of money in lieu of
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interest, shall be payable in respect of any dividend payment or payments on
Preferred Shares of such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Shares has a cumulative dividend, full cumulative
dividends on the Preferred Shares of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for all past dividend periods and the then current
dividend period and (ii) if such series of Preferred Shares does not have a
cumulative dividend, full dividends on the Preferred Shares of such series have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for the then current
dividend period, no dividends (other than in Common Shares or other Capital
Shares ranking junior to the Preferred Shares of such series as to dividends
and upon liquidation) shall be declared or paid or set aside for payment or
other distribution shall be declared or made upon the Common Shares, or any
other Capital Shares of the Company ranking junior to or on a parity with the
Preferred Shares of such series as to dividends or upon liquidation, nor shall
any Common Shares, or any other Capital Shares of the Company ranking junior to
or on a parity with the Preferred Shares of such series as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund for the
redemption of any such shares) by the Company (except by conversion into or
exchange for such Capital Shares of the Company ranking junior to the Preferred
Shares of such series as to dividends and upon liquidation).
Any dividend payment made on shares of a series of Preferred Shares
shall first be credited against the earliest accrued but unpaid dividend due
with respect to shares of such series which remains payable.
REDEMPTION
If so provided in the applicable Prospectus Supplement, the Preferred
Shares will be subject to mandatory redemption or redemption at the option of
the Company, as a whole or in part, in each case upon the terms, at the times
and at the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred Shares that
is subject to mandatory redemption will specify the number of such Preferred
Shares that shall be redeemed by the Company in each year commencing after a
date to be specified, at a redemption price per share to be specified, together
with an amount equal to all accrued and unpaid dividends thereon (which shall
not, if such Preferred Shares do not have a cumulative dividend, include any
accumulation in respect of unpaid dividends for prior dividend periods) to the
date of redemption. The redemption price may be payable in cash or other
property, as specified in the applicable Prospectus Supplement.
Notwithstanding the foregoing, unless (i) if such series of Preferred
Shares has a cumulative dividend, full cumulative dividends on all shares of
any series of Preferred Shares shall have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof set
apart for payment for all past dividend periods and the then current dividend
period and (ii) if such series of Preferred Shares does not have a cumulative
dividend, full dividends on the Preferred Shares of any series have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for payment for the then current dividend period,
no shares of any series of Preferred Shares shall be redeemed unless all
outstanding Preferred Shares of such series are simultaneously redeemed;
provided, however, that the foregoing shall not prevent the purchase or
acquisition of Preferred Shares of such series to preserve the REIT status of
the Company or pursuant to a purchase or exchange offer made on the same terms
to holders of all outstanding Preferred Shares of such series, and, unless (i)
if such series of Preferred Shares has a cumulative dividend, full cumulative
dividends on all outstanding shares of any series of Preferred Shares have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for payment for all past dividend periods and the
then current dividend period and (ii) if such series of Preferred Shares does
not have a cumulative dividend, full dividends on the Preferred Shares of any
series have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for payment for the then
current dividend period, the Company shall not purchase or otherwise acquire
directly or indirectly any Preferred Shares of such series (except by
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conversion into or exchange for Capital Shares of the Company ranking junior to
the Preferred Shares of such series as to dividends and upon liquidation);
provided, however, that the foregoing shall not prevent the purchase or
acquisition of Preferred Shares of such series to preserve the REIT status of
the Company or pursuant to a purchase or exchange offer made on the same terms
to holders of all outstanding Preferred Shares of such series.
If fewer than all of the outstanding Preferred Shares of any series are
to be redeemed, the number of Preferred Shares to be redeemed will be
determined by the Company and such shares may be redeemed pro rata from the
holders of record of such shares in proportion to the number of such shares
held by such holders (with adjustments to avoid redemption of fractional
shares) or by lot in a manner determined by the Company.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of record of Preferred Shares
of any series to be redeemed at the address shown on the share transfer books
of the Company. Each notice shall state: (i) the redemption date; (ii) the
number of shares and series of the Preferred Shares to be redeemed; (iii) the
redemption price; (iv) the place or places where certificates for such
Preferred Shares are to be surrendered for payment of the redemption price; (v)
that dividends on the shares to be redeemed will cease to accrue on such
redemption date; and (vi) the date upon which the holder's conversion rights,
if any, as to such shares will terminate. If fewer than all of the Preferred
Shares of any series are to be redeemed, the notice mailed to each such holder
thereof shall also specify the number of Preferred Shares to be redeemed from
each such holder. If notice of redemption of any Preferred Shares has been
given and if the funds necessary for such redemption have been set aside by the
Company in trust for the benefit of the holders of any Preferred Shares so
called for redemption, then from and after the redemption date dividends will
cease to accrue on such Preferred Shares, and all rights of the holders of such
shares will terminate, except the right to receive the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Company, then, before any distribution or payment shall
be made to the holders of any Common Shares, excess shares or any other class
or series of Capital Shares of the Company ranking junior to the Preferred
Shares in the distribution of assets upon any liquidation, dissolution or
winding up of the Company, the holders of each series of Preferred Shares shall
be entitled to receive out of assets of the Company legally available for
distribution to shareholders liquidating distributions in the amount of the
liquidation preference per share (set forth in the applicable Prospectus
Supplement), plus an amount equal to all dividends accrued and unpaid thereon
(which shall not include any accumulation in respect of unpaid dividends for
prior dividend periods if such Preferred Shares do not have a cumulative
dividend). After payment of the full amount of the liquidating distributions
to which they are entitled, the holders of Preferred Shares will have no right
or claim to any of the remaining assets of the Company. In the event that,
upon any such voluntary or involuntary liquidation, dissolution or winding up,
the available assets of the Company are insufficient to pay the amount of the
liquidating distributions on all outstanding Preferred Shares and the
corresponding amounts payable on all shares of other classes or series of
Capital Shares of the Company ranking on a parity with the Preferred Shares in
the distribution of assets, then the holders of the Preferred Shares and all
other such classes or series of Capital Shares shall share ratably in any such
distribution of assets in proportion to the full liquidating distributions to
which they would otherwise be respectively entitled.
If liquidating distributions shall have been made in full to all holders
of Preferred Shares, the remaining assets of the Company shall be distributed
among the holders of any other classes or series of Capital Shares ranking
junior to the Preferred Shares upon liquidation, dissolution or winding up,
according to their respective rights and preferences and in each case according
to their respective number of shares. For such purposes, the consolidation or
merger of the Company with or into any other corporation, trust or entity, or
the sale, lease or conveyance of all or substantially all of the property or
business of the Company, shall not be deemed to constitute a liquidation,
dissolution or winding up of the Company.
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VOTING RIGHTS
Holders of the Preferred Shares will not have any voting rights, except
as set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
Whenever dividends on any Preferred Shares shall be in arrears for six
consecutive quarterly periods, the holders of such Preferred Shares (voting
separately as a class with all other series of Preferred Shares upon which like
voting rights have been conferred and are exercisable) will be entitled to vote
for the election of two additional Trust Managers of the Company at the next
annual meeting of shareholders and at each subsequent meeting until (i) if such
series of Preferred Shares has a cumulative dividend, all dividends accumulated
on such series of Preferred Shares for the past dividend periods and the then
current dividend period shall have been fully paid or declared and a sum
sufficient for the payment thereof set aside for payment or (ii) if such series
of Preferred Shares does not have a cumulative dividend, four consecutive
quarterly dividends shall have been fully paid or declared and a sum sufficient
for the payment thereof set aside for payment. In such case, the entire Board
of Trust Managers of the Company will be increased by two Trust Managers.
Unless provided otherwise for any series of Preferred Shares, so long as
any Preferred Shares remain outstanding, the Company will not, without the
affirmative vote or consent of the holders of two-thirds of the shares of each
series of Preferred Shares outstanding at the time, given in person or by
proxy, either in writing or at a meeting (such series voting separately as a
class), (i) authorize or create, or increase the authorized or issued amount
of, any class or series of Capital Shares ranking prior to such series of
Preferred Shares with respect to the payment of dividends or the distribution
of assets upon liquidation, dissolution or winding up or reclassify any
authorized Capital Shares of the Company into any such shares, or create,
authorize or issue any obligation or security convertible into or evidencing
the right to purchase any such shares, or (ii) amend, alter or repeal the
provisions of the Company's Declaration of Trust or the Statement of
Designations for such series of Preferred Shares, whether by merger,
consolidation or otherwise (an "Event"), so as to materially and adversely
affect any right, preference, privilege or voting power of such series of
Preferred Shares or the holders thereof; provided, however, with respect to the
occurrence of any of the Events set forth in (ii) above, so long as the
Preferred Shares remain outstanding with the terms thereof materially
unchanged, taking into account that upon the occurrence of an Event, the
Company may not be the surviving entity, the occurrence of any such Event shall
not be deemed to materially and adversely affect such rights, preferences,
privileges or voting power of holders of Preferred Shares and provided further
that (A) any increase in the amount of the authorized Preferred Shares or the
creation or issuance of any other series of Preferred Shares, or (B) any
increase in the number of authorized shares of such series or any other series
of Preferred Shares, in each case ranking on a parity with or junior to the
Preferred Shares of such series with respect to the payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up, shall not
be deemed to materially and adversely affect such rights, preferences,
privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding shares of such series of Preferred Shares
shall have been redeemed or called for redemption and sufficient funds shall
have been deposited in trust to effect such redemption.
CONVERSION RIGHTS
The terms and conditions, if any, upon which any series of Preferred
Shares are convertible into Common Shares will be set forth in the applicable
Prospectus Supplement relating thereto. Such terms will include the number of
Common Shares into which the Preferred Shares are convertible, the conversion
price (or manner of calculation thereof), the conversion period, provisions as
to whether conversion will be at the option of the holders of the Preferred
Shares or the Company, the events requiring an adjustment of the conversion
price and provisions affecting conversion in the event of the redemption of
such Preferred Shares.
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SHAREHOLDER LIABILITY
As discussed below under "Description of Common Shares - Shareholder
Liability," the Declaration of Trust provides that no shareholder, including
holders of Preferred Shares, shall be personally liable for the acts and
obligations of the Company and that the funds and property of the Company shall
be solely liable for such acts or obligations. The Declaration of Trust
provides that, to the extent practicable, each written instrument creating an
obligation of the Company shall contain a provision to that effect. By
statute, the State of Texas provides limited liability for shareholders of a
REIT organized under the Texas Real Estate Investment Trust Act (the "REIT
Act"). However, certain jurisdictions may not recognize the limited liability
provided shareholders under the REIT Act and, therefore, a shareholder may be
held personally liable to the extent that such claims are not satisfied by the
Company. Because of the uncertainty that may exist in the laws of certain
states in which the Company owns property or conducts business, wholly owned
subsidiary corporations are utilized to own properties in such states. The
Bylaws of the Company provide for indemnification of shareholders by the
Company for any liabilities incurred in such capacity. The Company carries
public liability insurance that the Trust Managers consider adequate. Thus,
any risk of personal liability to shareholders is limited to situations in
which the Company's assets plus its insurance coverage would be insufficient to
satisfy the claims against the Company and its shareholders. The Company
believes that its operations have been conducted and will continue to be
conducted in such a way so as to avoid, as far as possible, ultimate liability
of the shareholders for liabilities of the Company.
RESTRICTIONS ON OWNERSHIP
As discussed below under "Description of Common Shares - REIT
Qualification," for the Company to qualify as a REIT under the Internal Revenue
Code of 1986, as amended (the "Code"), not more than 50% in value of its
outstanding Capital Shares may be owned, directly or constructively, by five or
fewer individuals (as defined in the Code to include certain entities) during
the last half of a taxable year. To assist the Company in meeting this
requirement, the Company may take certain other actions to limit the beneficial
ownership, directly or indirectly, by a single person to not more than 9.8% of
the Company's outstanding equity securities, including any Preferred Shares of
the Company. Therefore, the Statement of Designations for each series of
Preferred Shares will contain certain provisions restricting the ownership and
transfer of the Preferred Shares. The applicable Prospectus Supplement will
specify any additional ownership limitation relating to a series of Preferred
Shares.
DESCRIPTION OF COMMON SHARES
GENERAL
The Common Shares are issued pursuant to the Declaration of Trust. The
Common Shares, par value $.03 per share, are equal with respect to distribution
and liquidation rights, are not convertible, have no preemptive rights to
subscribe for additional Common Shares, are nonassessable (except as described
under "Shareholder Liability" below) and are transferable in the same manner as
shares of a corporation. Each shareholder is entitled to one vote in person
or by proxy for each Common Share registered in his name and has the right to
vote on the election or removal of Trust Managers, amendments to the
Declaration of Trust, proposals to terminate, reorganize, merge or consolidate
the Company or to sell or dispose of substantially all of the Company's
property and with respect to certain business combinations. The Company will
have perpetual existence unless and until dissolved and terminated. Except
with respect to the foregoing matters, no action taken by the shareholders at
any meeting shall in any way bind the Trust Managers. The Common Shares
offered by the Company will be, when issued, fully paid and nonassessable
(except as described under "Shareholder Liability" below).
Several provisions in the Declaration of Trust may have the effect of
deterring a take-over of the Company. These provisions restrict ownership of
the Company's outstanding equity securities by a single person to not more than
9.8% of such securities to assist in protecting and preserving the
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qualification of the Company as a REIT under the Code and include a "fair
price" provision that would deter a "two-stage" take-over transaction by
requiring an 80% vote of outstanding securities entitled to vote thereon for
certain defined "business combinations" with shareholders owning more than 50%
of the equity securities considered for such purposes if the transaction is
neither approved by the Board of Trust Managers nor meets certain price and
procedural conditions.
REIT QUALIFICATION
The Company operates in a manner intended to qualify it for treatment as
a REIT under Sections 856 through 860 of the Code. In general, a REIT that
distributes to its shareholders at least 95% of its taxable income (other than
net capital gain) for a taxable year and that meets certain other conditions
will not be taxed on income (including net capital gain) distributed for that
year. If the Company fails to qualify as a REIT in any taxable year, it will
be taxed as a corporation for that year, and distributions to its shareholders
will not be deductible by the Company in computing its taxable income. Under
certain circumstances, the Company also will be disqualified from being treated
as a REIT for the ensuing four taxable years. Failure to qualify as a REIT
could result in the Company incurring indebtedness and perhaps liquidating
investments in order to pay its taxes.
Among the requirements which must be met in order for the Company to
qualify as a REIT is that no more than 50% in value of the outstanding capital
shares, including in some circumstances capital shares into which outstanding
securities (including the Securities) might be converted, may be owned actually
or constructively by five or fewer individuals or certain other entities at any
time during the last half of the Company's taxable year. To assist the Company
in meeting this requirement, the Declaration of Trust limits persons to
ownership of not more than 9.8% of the outstanding equity securities of the
Company, including Common Shares. Convertible securities (whether in
registered or bearer form) are treated as if such securities had been converted
in calculating the ownership limit. The Declaration of Trust provides that any
attempted transfers of Common Shares that would cause a person to exceed the
limit shall be null and void. However, because the Code imposes broad
attribution rules in determining constructive ownership, no assurances can be
given that the restrictions of the Declaration of Trust will be effective in
maintaining the Company's REIT status. Further, owners of more than 6.5% of
the Common Shares as of January 19, 1988 (currently only Stanford Alexander,
who at December 31, 1994 beneficially owned approximately 7.5% of the
outstanding Common Shares) are exempted from the limit. Without shareholder
approval, the Company may issue an unlimited number of securities, warrants,
rights or other options to purchase Common Shares and other securities
convertible into Common Shares.
SHAREHOLDER LIABILITY
The Declaration of Trust provides that no shareholder shall be
personally liable for the acts and obligations of the Company and that the
funds and property of the Company shall be solely liable for such acts or
obligations. The Declaration of Trust provides that, to the extent
practicable, each written instrument creating an obligation of the Company
shall contain a provision to that effect. By statute, the State of Texas
provides limited liability for shareholders of a REIT organized under the REIT
Act. However, certain jurisdictions may not recognize the limited liability
provided shareholders under the REIT Act and, therefore, a shareholder may be
held personally liable to the extent that such claims are not satisfied by the
Company. Because of the uncertainty that may exist in the laws of certain
states in which the Company owns property or conducts business, wholly owned
subsidiary corporations are utilized to own properties in such states. The
Bylaws of the Company provide for indemnification of shareholders by the
Company for any liabilities incurred in such capacity. The Company carries
public liability insurance that the Trust Managers consider adequate. Thus,
any risk of personal liability to shareholders is limited to situations in
which the Company's assets plus its insurance coverage would be insufficient to
satisfy the claims against the Company and its shareholders. The Company
believes that its operations have been conducted and will continue to be
conducted in such a way so as to avoid, as far as possible, ultimate liability
of the shareholders for liabilities of the Company.
-23-
<PAGE> 27
REGISTRAR AND TRANSFER AGENT
The Registrar and Transfer Agent for the Common Shares is Society
National Bank, Cleveland, Ohio. The Common Shares are listed on the New York
Stock Exchange (Symbol: WRI).
PLAN OF DISTRIBUTION
The Company may sell Securities to or through underwriters, and also may
sell Securities directly to other purchasers or through agents.
The distribution of the Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive
compensation from the Company or from purchasers of Securities, for whom they
may act as agents, in the form of discounts, concessions, or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act
as agents. Underwriters, dealers and agents that participate in the
distribution of Securities may be deemed to be underwriters, and any discounts
or commissions they receive from the Company, and any profit on the resale of
Securities they realize may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company will be
described, in the applicable Prospectus Supplement.
Unless otherwise specified in the related Prospectus Supplement, each
series of Securities will be a new issue with no established trading market,
other than the Common Shares which are listed on the New York Stock Exchange.
Any Common Shares sold pursuant to a Prospectus Supplement will be listed on
such exchange, subject to official notice of issuance. The Company may elect
to list any series of Debt Securities or Preferred Shares on an exchange, but
is not obligated to do so. It is possible that one or more underwriters may
make a market in a series of Securities, but will not be obligated to do so and
may discontinue any market making at any time without notice. Therefore, no
assurance can be given as to the liquidity of the trading market for the
Securities.
Under agreements the Company may enter into, underwriters, dealers and
agents who participate in the distribution of Securities may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be customers of, the Company in the ordinary course of
business.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions
with which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases such institutions must be
approved by the Company. The obligations of any purchaser under any such
contract will be subject to the condition that the purchase of the Securities
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such
other agents will not have any responsibility in respect of the validity or
performance of such contracts.
-24-
<PAGE> 28
LEGAL OPINIONS
The legality of the Securities offered hereby as well as certain federal
income tax matters will be passed upon for the Company by Andrews & Kurth
L.L.P., 4200 Texas Commerce Tower, Houston, Texas 77002. Brown & Wood, One
World Trade Center, New York, New York 10048-0557 will act as counsel to any
underwriters, dealers or agents.
EXPERTS
The consolidated financial statements and related financial statement
schedules incorporated in this Prospectus by reference from the Company's
Annual Report on Form 10-K for the year ended December 31, 1993, have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report which is incorporated herein by reference, and have been so incorporated
in reliance upon the reports of such firm given upon their authority as experts
in accounting and auditing.
-25-
<PAGE> 29
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the offering contemplated by this Registration Statement:
<TABLE>
<S> <C>
SEC Registration Fee ............................. $ 68,966
Blue Sky Fees and Expenses ....................... 15,000
Printing and Engraving Costs ..................... 30,000
Accounting Fees and Expenses ..................... 10,000
Legal Fees and Expenses .......................... 50,000
Trustee and Registrar Fees ....................... 20,000
Rating Agencies Fees ............................. 100,000
Miscellaneous .................................... 6,034
--------
Total ............................................ $300,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (B) of Section 9.1 of the Texas Real Estate Investment Trust
Act (the "Act") empowers a real estate investment trust to indemnify any person
who was, is, or is threatened to be made a named defendant or respondent in any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, arbitrative, or investigative or any inquiry or
investigation that can lead to such an action, suit or proceeding because the
person is or was a trust manager, officer, employee or agent of the real estate
investment trust or is or was serving at the request of the real estate
investment trust as a trust manager, director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another real
estate investment trust, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise against
expenses (including court costs and attorney fees), judgments, penalties, fines
and settlements if he conducted himself in good faith and reasonably believed
his conduct was in or not opposed to the best interests of the real estate
investment trust and, in the case of any criminal proceeding, had no reasonable
cause to believe that his conduct was unlawful.
The Act further provides that a person may not be indemnified in respect
of a proceeding in which the person is found liable on the basis that personal
benefit was improperly received by him or in which the person is found liable
to the real estate investment trust. Indemnification pursuant to Subsection
(B) of Section 9.1 of the Act is limited to reasonable expenses actually
incurred and may not be made in respect of any proceeding in which the person
has been found liable for willful or intentional misconduct in the performance
of his duty to the real estate investment trust.
Section 15 of the Act provides that a trust manager shall not be liable
for any claims or damages that may result from his acts in the discharge of any
duty imposed or power conferred upon him by the real estate investment trust,
if, in the exercise of ordinary care, he acted in good faith and in reliance
upon the written opinion of an attorney for the real estate investment trust.
In addition, no trust manager shall be liable to the real estate investment
trust for any act, omission, loss, damage, or expense arising from the
performance of his duty to a real estate investment trust, save only for his
own willful misfeasance or malfeasance or negligence.
Article Sixteen of the Company's Amended and Restated Declaration of
Trust provides that the Company shall indemnify officers and Trust Managers, as
set forth below:
(a) The Company shall indemnify, to the extent provided in the
Company's Bylaws, every person who is or was a Trust Manager or officer
of the Company or its corporate
II-1
<PAGE> 30
predecessor and any person who is or was serving at the request of the
Company or its corporate predecessor as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise with
respect to all costs and expenses incurred by such person as a result of
such person being made or threatened to be made a defendant or respondent
in a proceeding by reason of his holding or having held a position named
above in this paragraph.
(b) If the indemnification provided in paragraph (a) is either
(i) insufficient to cover all costs and expenses incurred by any person
named in such paragraph as a result of such person being made or
threatened to be made a defendant or respondent in a proceeding by
reason of his holding or having held a position named in such paragraph
or (ii) not permitted by Texas law, the Company shall indemnify, to the
fullest extent that indemnification is permitted by Texas law, every
person who is or was a Trust Manager or officer of the Company or its
corporate predecessor and any person who is or was serving at the
request of the Company or its corporate predecessor as a director,
officer, partner, venturer, proprietor, trustee, employee, agent or
similar functionary of another foreign or domestic corporation,
partnership, joint venture, sole proprietorship, trust, employee benefit
plan or other enterprise with respect to all costs and expenses incurred
by such person as a result of such person being made or threatened to be
made a defendant or respondent in a proceeding by reason of his holding
or having held a position named above in this paragraph.
The Company's Bylaws provide that the Company may indemnify any Trust
Manager or officer of the Company who was, is or is threatened to be made a
party to any suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative, because the person is or was a Trust Manager,
officer, employee or agent of the Company, or is or was serving at the request
of the Company in the same or another capacity in another corporation or
business association, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred if it is determined that the person: (i)
conducted himself in good faith, (ii) reasonably believed that, in the case of
conduct in his official capacity, his conduct was in the best interests of the
Company, and that, in all other cases, his conduct was at least not opposed to
the best interests of the Company, and (iii) in the case of any criminal
proceeding, had no reasonable cause to believe his conduct was unlawful;
provided that, if the person is found liable to the Company, or is found liable
on the basis that personal benefit was improperly received by the person, the
indemnification (A) is limited to reasonable expenses actually incurred by the
person in connection with the proceeding and (B) will not be made in respect of
any proceeding in which the person shall have been found liable for willful or
intentional misconduct in the performance of his duty to the Company.
Under Section 8 of the Underwriting Agreements filed as Exhibits 1(a)
and 1(b) hereto, the underwriters agree to indemnify, under certain
conditions, the Company, its officers and Trust Managers, and persons who
control the Company within the meaning of the Securities Act of 1933, as
amended, against certain liabilities.
ITEM 16. EXHIBITS.
(1)(a) Form of Underwriting Agreement for Debt Securities
(1)(b) Form of Underwriting Agreement for Equity Securities
(4)(a) Form of Indenture for Senior Debt Securities
(4)(b) Form of Indenture for Subordinated Debt Securities
(4)(c) Form of Senior Debt Security
(4)(d) Form of Subordinated Debt Security
(4)(e) Amended and Restated Declaration of Trust, as amended
(filed as Exhibit 3.1 to the Company's Registration
Statement on Form S-3 (No. 33-49206) and incorporated
herein by reference)
(4)(f) Bylaws of the Company (filed as Exhibit 3.2 of the
Company's Registration Statement on Form S-3 (No.
33-49206) and incorporated herein by reference)
(4)(g) Form of Statement of Designation of Preferred Shares
(4)(h) Form of Preferred Share Certificate
II-2
<PAGE> 31
(5) Opinion regarding legality
(10) Credit Agreement dated as of November 22, 1994 between
Weingarten Realty Investors and Texas Commerce Bank
National Association as Agent and individually as a Bank,
First Interstate Bank of Texas N.A. and the Banks defined
therein, together with Amendment No. 1 to such Credit
Agreement, dated as of _______________.
(12) Statement regarding computation of ratios
(23)(a) Consent of Independent Accountants
(23)(b) Consent of Counsel (included in opinion)
(24) Power of Attorney (included on signature page)
(25)(a) Statement of Eligibility of Trustee for Senior Debt
Securities (Texas Commerce Bank National Association) on
Form T-1
(25)(b) Statement of Eligibility of Trustee for Subordinated Debt
Securities (Texas Commerce Bank National Association) on
Form T-1
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions
II-3
<PAGE> 32
described in Item 15 of this Registration Statement or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than in payment by the registrant of expenses incurred
or paid by a director, officer or controlling person in the successful defense
of any action, suit or proceeding) is asserted against the registrant by such
director, officer or controlling person in connection with the securities being
registered hereby, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For the purpose of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as a part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4), or 497(h) under the
Securities Act shall be deemed to be part of this registration statement
as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
II-4
<PAGE> 33
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on the 9th day of
February, 1995.
WEINGARTEN REALTY INVESTORS
By: /s/ Stanford Alexander
Stanford Alexander
Chairman
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Stanford Alexander, Martin Debrovner and
Joseph W. Robertson, Jr., and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him, and on his behalf and in his name, place and stead, in
any and all capacities, to sign, execute and file this Registration Statement
under the Securities Act of 1933, as amended, and any or all amendments
(including, without limitation, post-effective amendments), with all exhibits
and any and all documents required to be filed with respect thereto, with the
Securities and Exchange Commission or any regulatory authority, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises in order to effectuate the same, as fully to all
intents and purposes as he himself might or could do if personally present,
hereby ratifying and confirming all that such attorneys-in-fact and agents, or
any of them, or their substitute or substitutes, may lawfully do or cause to be
done.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Stanford Alexander Chairman and Trust Manager February 9, 1995
Stanford Alexander (Chief Executive Officer)
/s/ Andrew M. Alexander Executive Vice President/ February 9, 1995
Andrew M. Alexander Asset Management and
Trust Manager
/s/ Martin Debrovner President, Chief Operating February 9, 1995
Martin Debrovner Officer and Trust Manager
</TABLE>
II-5
<PAGE> 34
<TABLE>
<S> <C> <C>
/s/ Melvin A. Dow Trust Manager February 9, 1995
Melvin A. Dow
/s/Stephen A. Lasher Trust Manager February 9, 1995
Stephen A. Lasher
/s/ Joseph W. Robertson, Jr. Executive Vice President February 9, 1995
Joseph W. Robertson, Jr. and Trust Manager
(Chief Financial Officer)
/s/ Douglas W. Schnitzer Trust Manager February 9, 1995
Douglas W. Schnitzer
/s/Marc J. Shapiro Trust Manager February 9, 1995
Marc J. Shapiro
/s/J.T. Trotter Trust Manager February 9, 1995
J.T. Trotter
/s/Stephen C. Richter Vice President and Treasurer February 9, 1995
Stephen C. Richter (Principal Accounting Officer)
</TABLE>
II-6
<PAGE> 35
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBITS
- ------ --------
<S> <C>
(1)(a) Form of Underwriting Agreement for Debt Securities ........................
(1)(b) Form of Underwriting Agreement for Equity Securities ......................
(4)(a) Form of Indenture for Senior Debt Securities ..............................
(4)(b) Form of Indenture for Subordinated Debt Securities ........................
(4)(c) Form of Senior Debt Security ..............................................
(4)(d) Form of Subordinated Debt Security ........................................
(4)(e) Amended and Restated Declaration of Trust, as amended (filed as
Exhibit 3.1 to the Company's Registration Statement on Form S-3
(No. 33-49206) and incorporated herein by reference) ......................
(4)(f) Bylaws of the Company (filed as Exhibit 3.2 of the Company's
Registration Statement on Form S-3 (No. 33-49206) and
incorporated herein by reference) .........................................
(4)(g) Form of Statement of Designation of Preferred Shares ......................
(4)(h) Form of Preferred Share Certificate .......................................
(5) Opinion regarding legality ................................................
(10) Credit Agreement dated as of November 22, 1994 between Weingarten
Realty Investors and Texas Commerce Bank National Association as
Agent and individually as a Bank, First Interstate Bank of Texas
N.A. and the Banks defined therein, together with Amendment No.
1 to such Credit Agreement, dated as of _______________. ..................
(12) Statement regarding computation of ratios .................................
(23)(a) Consent of Independent Accountants ........................................
(23)(b) Consent of Counsel (included in opinion) ..................................
(24) Power of Attorney (included on signature page) ............................
(25)(a) Statement of Eligibility of Trustee for Senior Debt Securities
(Texas Commerce Bank National Association) on Form T-1 ....................
(25)(b) Statement of Eligibility of Trustee for Subordinated Debt
Securities (Texas Commerce Bank National Association) on Form T-1 .........
</TABLE>
<PAGE> 1
Exhibit (1)(a)
Draft 2/3/95
WEINGARTEN REALTY INVESTORS
Debt Securities
_______________
Underwriting Agreement
___________, 199_
[To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.]
Ladies and Gentlemen:
From time to time Weingarten Realty Investors, a Texas real estate
investment trust (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with
such additions and deletions as the parties thereto may determine, and, subject
to the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its debt securities (the "Securities")
specified in Schedule II to such Pricing Agreement (with respect to such
Pricing Agreement, the "Designated Securities"). [Delayed delivery provisions,
if any]
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the
<PAGE> 2
obligation of any of the Underwriters to purchase any of the Securities shall
be evidenced by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the aggregate
principal amount of such Designated Securities, the initial public offering
price of such Designated Securities, the purchase price to the Underwriters of
such Designated Securities, the names of the Underwriters of such Designated
Securities, the names of the Representatives of such Underwriters and the
principal amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
specify (to the extent not set forth in the Indenture and the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No.
33-_______) in respect of the Securities has been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each
in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration
statement, but including all documents incorporated by reference in
the prospectus contained therein, to the Representatives for each of
the other Underwriters have been declared effective by the Commission
in such form; no other document with respect to such registration
statement or document incorporated by reference therein has heretofore
been filed or transmitted for filing with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act of 1933 as
amended (the "Act") each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of
such registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or
filed with the Commission pursuant to Rule 424(a) under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of
such registration statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration
statement became effective but
- 2 -
<PAGE> 3
excluding Form T-1, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively
called the "Registration Statement"; the prospectus relating to the
Securities, in the form in which it has most recently been filed, or
transmitted for filing, with the Commission on or prior to the date of
this Agreement, is hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference
therein pursuant to the applicable form under the Act, as of the date
of such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Sections 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon
- 3 -
<PAGE> 4
and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented
relating to such Securities;
(c) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the rules and regulations of
the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented
relating to such Securities;
(d) The Company is a real estate investment trust duly
formed, validly existing and in good standing under the laws of the
State of Texas, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to transact business and
is in good standing in each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction, and
holds all authorizations, approvals, orders, licenses, certificates
and permits from all governmental authorities which are material to
the conduct of its business;
(e) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has power and
authority (corporate and other) to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect or a
prospective material adverse effect, on the condition, financial or
otherwise, or the earnings or business affairs of
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<PAGE> 5
the Company and its subsidiaries considered as one enterprise; all of
the issued and outstanding capital stock of each such subsidiary has
been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through
subsidiaries (except for Weingarten Properties, Inc., of which the
Company owns approximately 76% of the outstanding capital shares),
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity;
(f) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated
in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any change in the capital stock of the Company or
any change in the consolidated long-term debt of the Company or any of
its subsidiaries or any decrease in consolidated net current assets or
net assets or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity
or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus;
(g) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are
fully paid and non-assessable;
(h) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture has
been duly authorized and duly qualified under the Trust Indenture Act
and, at the Time of Delivery for such Designated Securities (as
defined in Section 4 hereof), the Indenture will constitute a valid
and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Indenture
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<PAGE> 6
conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Securities;
(i) The issue and sale of the Securities and the compliance
by the Company with all of the provisions of the Securities, the
Indenture, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation
of the provisions of the Declaration of Trust or By-laws of the
Company or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their respective properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement or any
Pricing Agreement or the Indenture, except such as have been, or will
have been prior to the Time of Delivery, obtained under the Act and
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(j) The statements set forth in the Prospectus under the
captions "Description of Debt Securities" and "Description of Notes,"
insofar as they purport to constitute a summary of the terms of the
Securities, and under the captions "Description of Common Shares,"
"Description of Preferred Shares," "Plan of Distribution" and
"Underwriting," insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair;
(k) Neither the Company nor any of its subsidiaries is in
violation of its charter or By-laws or in default in the performance
or observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or its properties may be bound;
(l) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the
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<PAGE> 7
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(m) The financial statements set forth or incorporated by
reference in the Registration Statement present fairly the financial
position and the results of operations of the Company and its
subsidiaries at the indicated dates and for the indicated periods.
Except as otherwise stated in the Registration Statement, such
financial statements have been prepared in accordance with generally
accepted accounting principles, applied on a consistent basis; and the
supporting schedules included in the Registration Statement present
fairly the information required to be stated therein;
(n) The Company and its subsidiaries have good and
indefeasible title in fee simple to all real property and interests in
real property owned by them and good and indefeasible title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects, except as are described in the
Prospectus [and except for properties subject to a pledge under the
Amended and Restated Loan Agreement of $80,000,000, executed January
22, 1993, between the Company and Texas Commerce Bank National
Association and under a Loan Agreement, dated August 6, 1987, between
the Company and the Variable Annuity Life Insurance Company, American
General Life Insurance Company, American General Life Insurance
Company of Delaware, Republic National Life Insurance Company and
American Amicable Life Insurance Company of Texas, as amended,] and
except for property owned in the joint ventures set forth in Annex III
hereto or such as do not materially affect the value of such property
and interests in the aggregate and do not interfere with the use made
and proposed to be made of such property and interests by the Company
and its subsidiaries taken as a whole; in the case of real property
and interests in real property, the Company and its subsidiaries have
obtained satisfactory confirmation (consisting of policies of title
insurance or binders therefor or opinions of counsel based upon the
examination of abstracts) confirming, except as is otherwise described
in the Prospectus, (a) that the Company and its subsidiaries have the
foregoing title to such real property and interests in real property;
provided, however, that in those cases in which such information is
not current, the Company and its subsidiaries do not have notice of
any material claim of any sort which has
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<PAGE> 8
been asserted by anyone adverse to the Company's or its subsidiaries
foregoing title to such real property and interests in real property,
and (b) that the instruments securing the indebtedness of third
parties to the Company or its subsidiaries create valid liens upon the
real properties described in such instruments enjoying the priorities
intended, subject only to exceptions to title which have no materially
adverse effect on the value of such real properties and interests; and
any real property and buildings held under lease by the Company or its
subsidiaries or leased by the Company or its subsidiaries to a third
party are held or leased by them under valid, binding and enforceable
leases conforming to the description thereof set forth in the
Prospectus, with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property
and buildings by the Company or its subsidiaries or such third party;
(o) The Company has filed all federal, state and foreign
income tax returns which have been required to be filed on or before
the due date (taking into account all extensions of time to file) and
has paid or provided for all taxes indicated by said returns and all
assessments received by it to the extent that taxes have become due;
(p) Since January 1, 1985, the Company's form of
organization, share ownership and method of operation have satisfied,
and the Company intends to continue to satisfy, for the calendar year
1995 and subsequent taxable periods, the requirements of the Internal
Revenue Code of 1954 and 1986, as applicable, as amended (the "Code"),
for qualification of the Company as a "real estate investment trust";
the Company's management believes that the nature and value of the
Company's assets and the anticipated income of the Company for the
taxable year ending December 31, 1995 will enable the Company to
qualify as a real estate investment trust for that taxable year
(subject to the continuing qualification of the Company's share
ownership and the Company's filing of its federal income tax return
for that taxable year and electing to be treated as a real estate
investment trust);
(q) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(r) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes;
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<PAGE> 9
(s) Deloitte & Touche L.L.P., who have certified certain
financial statements of the Company and its subsidiaries are
independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder; and
(t) Although the Company is aware of the presence of
hazardous substances, hazardous materials, toxic substances or waste
materials ("Hazardous Materials") on certain of its properties,
nothing has come to the attention of the Company which, at this time,
would lead the Company to believe that the presence of such Hazardous
Materials, when considered in the aggregate, would materially
adversely affect the financial condition of the Company. In
connection with the construction on or operation and use of the
properties owned or leased by the Company or any of its subsidiaries,
the Company represents that, as of the date of this Agreement, it has
no knowledge of any material failure by the Company or any of its
subsidiaries to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous Materials.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant
to the Pricing Agreement relating thereto, in the form specified in such
Pricing Agreement and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, all in the manner and at the place and
time and date specified in such Pricing Agreement or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives and to file such Prospectus
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<PAGE> 10
pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution
and delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as may be
required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Securities which
shall be disapproved by the Representatives for such Securities
promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after
such Time of Delivery and furnish the Representatives with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities, and during
such same period to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of
any prospectus relating to the Securities or suspending any such
qualification, to promptly use every reasonable effort to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus
as amended or supplemented in such quantities as the Representatives
may from time to time reasonably request,
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<PAGE> 11
and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Securities and if at such
time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and to file such
document and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company which mature more than one year
after such Time of Delivery and which are substantially similar to
such Designated Securities, without the prior written consent of the
Representatives;
(f) To use the net proceeds received by it from the sale of
the Securities in the manner specified in the Prospectus under the
caption "Use of Proceeds";
(g) To elect to qualify as a "real estate investment trust"
under the Internal Revenue Code of 1986, as amended (the "Code"), and
to use every reasonable effort to continue to meet the requirements to
qualify as a "real estate investment trust"; and
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<PAGE> 12
(h) To comply with all of the provisions of Section
517.075 of the Florida Statutes, and all regulations promulgated
thereunder relating to issuers doing business with Cuba.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Surveys and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and
Legal Investment Surveys; (iv) any fees charged by securities rating services
for rating the Securities; (v) any filing fees incident to any required review
by the National Association of Securities Dealers, Inc. of the terms of the
sale of the Securities; (vi) the cost of preparing the Securities; (vii) the
fees and expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have
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<PAGE> 13
been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by the rules and
regulations under the Act and in accordance with Section 5(a) hereof;
no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Brown & Wood, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated the
Time of Delivery for such Designated Securities, with respect to the
matters covered in paragraphs (i), (ii), (vii), (viii), (ix), (xii)
and (xvi) of subsection (c) below as well as such other related
matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Andrews & Kurth L.L.P., counsel for the Company, shall
have furnished to the Representatives their written opinion, dated the
Time of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company is a real estate investment trust
duly formed, validly existing and in good standing under the
laws of the State of Texas and is entitled to the benefits of
the Texas Real Estate Investment Trust Act.
(ii) The Company has the power and authority
(corporate and other) to own its properties and to conduct its
business as described in the Prospectus as amended or
supplemented.
(iii) The Company is duly qualified to transact
business and is in good standing in each jurisdiction in which
it owns or leases properties, or conducts any business, so as
to require such qualification or is subject to no material
liability, or disability by reason of the failure to be so
qualified in any such jurisdiction.
(iv) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has power and authority (corporate and other)
to own, lease and operate its properties and to conduct its
business as described in the Prospectus and, to the best of
their knowledge and information, is duly
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<PAGE> 14
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not
have a material adverse effect or a prospective material adverse
effect on the condition, financial or otherwise, or the earnings or
business affairs of the Company and its subsidiaries considered as one
enterprise; all of the issued and outstanding capital stock of each
such subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and is owned by the Company, directly or
through subsidiaries (except for Weingarten Properties, Inc., of which
the Company owns approximately 76% of the outstanding capital shares),
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(v) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of
the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable.
(vi) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the
Company or any its subsidiaries is the subject which, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others.
(vii) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly authorized,
executed and delivered by the Company.
(viii) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute
valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture; and the Designated
Securities and the Indenture conform to the descriptions
thereof in the Prospectus as amended or supplemented.
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<PAGE> 15
(ix) The Indenture has been duly authorized,
executed and delivered by the parties thereto and constitutes
a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture
has been duly qualified under the Trust Indenture Act.
(x) The issue and sale of the Designated Securities
and the compliance by the Company with all of the provisions
of the Designated Securities, the Indenture, this Agreement
and the Pricing Agreement with respect to the Designated
Securities and the consummation of the transactions herein
and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument
known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
nor will such actions result in any violation of the
provisions of the Declaration of Trust or By-laws of the
Company or any statute or any order, rule or regulation known
to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties.
(xi) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Designated Securities or the consummation by the
Company of the transactions contemplated by this Agreement or
the Pricing Agreement or the Indenture, except such as have
been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Designated Securities by the
Underwriters.
(xii) The information set forth in the Prospectus,
under the captions "Description of Debt Securities,"
"Description of Notes," "Description of Common Shares,"
"Description of Preferred Shares," "Plan of Distribution"
and "Underwriting, to the extent such information constitutes
matters of law, summaries of legal matters,
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<PAGE> 16
documents or proceedings, or legal conclusions, has been
reviewed by them and is correct.
(xiii) Based upon review of such documents,
certificates and records as counsel has deemed necessary to
express its opinion, upon its discussions with management of
the Company, independent accountants for the Company and with
certain shareholders of the Company and based upon the facts
set forth in the Registration Statement, certain assumptions
and certain representations made to it by the Company's
management and by certain of its shareholders, counsel is of
the view that, as of the date of its opinion the Company's
form of organization and its share ownership is such as to
enable the Company to meet the requirements of the Code for
qualifications as a real estate investment trust thereunder
and that its income, assets and method of operations have
allowed it to qualify as a real estate investment trust for
its taxable year ended December 31, 1985 and all years
thereafter, and its currently contemplated future assets,
income and method of operations should put it in a position to
qualify to be treated as a real estate investment trust for
the calendar year 1995.
(xiv) The Company is not an "investment company" or an
entity "controlled" by a "investment company," as such terms
are defined in the Investment Company Act.
(xv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder;
and they have no reason to believe that any of such documents,
when they became effective or were so filed, as the case may
be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission,
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading.
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<PAGE> 17
(xvi) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations
thereunder; although they do not assume any responsibility for
the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in subsection
(xii) of this Section 7(c), they have no reason to believe
that, as of its effective date, the Registration Statement or
any further amendment thereto made by the Company prior to the
Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement
thereto made by the Company prior to the Time of Delivery
(other than the financial statements and related schedules
therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading or that, as of the Time of Delivery,
either the Registration Statement or the Prospectus as amended
or supplemented or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than
the financial statements and related schedules therein, as to
which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
they do not know of any amendment to the Registration
Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required.
(d) On the date of the Pricing Agreement for such Designated
Securities and at the Time of Delivery for such
- 17 -
<PAGE> 18
Designated Securities, the independent accountants of the Company who
have certified the financial statements of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement shall have furnished to the Representatives a letter, dated
the effective date of the Registration Statement or the date of the
most recent report filed with the Commission containing financial
statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such effective
date, and a letter dated such Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Securities any loss or interference with its business from
fire, explosion, flood or other calamity, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as amended prior to the date
of the Pricing Agreement relating to the Designated Securities, and
(ii) since the respective dates as of which information is given in
the Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities there shall not have been any
change in the capital stock of the Company or any change in the
consolidated long-term debt of the Company and its subsidiaries or any
decrease in consolidated net current assets or net assets or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities, the effect of which, in any
such case described in Clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in
the Prospectus as first amended or supplemented relating to the
Designated Securities;
(f) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities or preferred shares
by any "nationally recognized statistical rating organization", as
that term is defined by
- 18 -
<PAGE> 19
the Commission for purposes of Rule 436(g)(2) under the Act and (ii)
no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred shares;
(g) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Designated Securities on the terms and in the
manner contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities; and
(h) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Securities a certificate or certificates of officers of the
Company satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such
Underwriter in connection
- 19 -
<PAGE> 20
with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not
be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Securities, or any such amendment
or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or
any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party
otherwise
- 20 -
<PAGE> 21
than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation.
In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect
to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated
Securities on the other from the offering of the Designated Securities
to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or
if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
- 21 -
<PAGE> 22
such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand
and the Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and such
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriters. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d).
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the applicable Designated
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The obligations of the Underwriters of Designated Securities in this
subsection (d) to contribute are several in proportion to their
respective underwriting obligations with respect to such Securities
and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and
- 22 -
<PAGE> 23
conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters
under this Section 8 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and trust manager of the
Company and to each person, if any, who controls the Company within
the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase
under the Pricing Agreement relating to such Designated Securities,
the Representatives may in their discretion arrange for themselves or
another party or other parties to purchase such Designated Securities
on the terms contained herein. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange for the
purchase of such Designated Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such terms.
In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for the
purchase of such Designated Securities, or the Company notifies the
Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have
the right to postpone the Time of Delivery for such Designated
Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented,
or in any other documents or arrangements, and the Company agrees to
file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter"
as used in this Agreement shall include any person substituted under
this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of such
Designated Securities which remains unpurchased does not exceed
one-tenth of the aggregate principal amount of the Designated
Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under
the Pricing Agreement relating to such Designated Securities and,
- 23 -
<PAGE> 24
in addition, to require each non-defaulting Underwriter to purchase
its pro rata share (based on the principal amount of Designated
Securities which such Underwriter agreed to purchase under such
Pricing Agreement) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate principal amount of Designated
Securities which remains unpurchased exceeds one-tenth of the
aggregate principal amount of the Designated Securities, as referred
to in subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to
such Designated Securities shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or trust manager or controlling person of the Company,
and shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section
9 hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof. If this Agreement shall
be terminated as a result of any of the conditions set forth in Section 7
hereof (other than Section 7(g)(i), (iii) or (iv)) not being satisfied, the
Company will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
- 24 -
<PAGE> 25
Securities, but the Company shall then be under no further liability to any
Underwriter with respect to such Designated Securities except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if
any, as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth in
the Pricing Agreement; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth
in the Registration Statement: Attention: Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Sections 8 and 10 hereof, the officers and trust managers of
the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing, Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
- 25 -
<PAGE> 26
If the foregoing is in accordance with your understanding, please sign
and return to us ____ counterparts hereof.
Very truly yours,
WEINGARTEN REALTY INVESTORS
By: _____________________________
Name:
Title:
Accepted as of the date hereof:
[Names of Representatives]
By _______________________
- 26 -
<PAGE> 27
ANNEX I
Pricing Agreement
[Name(s) of Representative(s)]
As Representatives of the several
Underwriters named in Schedule I hereto,
[Name and address of Representative]
_________________, 199_
Dear Sirs:
Weingarten Realty Investors, a Texas real estate investment trust (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated _______________ __, 199_ (the "Underwriting
Agreement"), between the Company on the one hand and [names of Representatives
named therein] on the other hand, to issue and sell to the Underwriters named
in Schedule I hereto (the "Underwriters") the Securities specified in Schedule
II hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and
warranty which refers to the Prospectus in Section 2 of the Underwriting
Agreement shall be deemed to be a representation or warranty as of the date of
the Underwriting Agreement in relation to the Prospectus (as therein defined),
and also a representation and warranty as of the date of this Pricing Agreement
in relation to the Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated
to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated
- 1 -
<PAGE> 28
Securities, in the form heretofore delivered to you is now proposed to be filed
with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us ____ counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
WEINGARTEN REALTY INVESTORS
By: _____________________________
Name:
Title:
Accepted as of the date hereof:
[Names of Representatives]
By _______________________
On behalf of each of the Underwriters
- 2 -
<PAGE> 29
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount of
Designated Securities
Underwriter to be Purchased
----------- --------------------
<S> <C>
$
============
Total . . . . . . . . . . . . . . . . . . $
============
</TABLE>
<PAGE> 30
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[ %] [Senior] [Subordinated] [Floating Rate] [Zero Coupon]
[Notes][Debentures] due
AGGREGATE PRINCIPAL AMOUNT
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest from to
[and accrued amortization, if any, from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest from to
[and accrued amortization, if any, from to ]
FORM OF DESIGNATED SECURITIES:
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[New York] Clearing House funds
INDENTURE:
Indenture dated , 1995, between the Company and Texas Commerce
Bank, National Association, as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates]
REDEMPTION PROVISIONS:
[No provisions for redemption] [The Designated Securities may be
redeemed, otherwise than through the sinking fund, in whole or in part
at the option of the Company, in the amount of [$] or an
integral multiple thereof, [on or after , at the following
redemption prices (expressed in percentages of principal amount). If
[redeemed
- 1 -
<PAGE> 31
on or before , %, and if] redeemed during the 12-month
period beginning ,
<TABLE>
<CAPTION>
Redemption
Year Price
---- ----------
<S> <C> <C>
</TABLE>
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.] [on any interest
payment date falling on or after , , at the election of
the Company, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire [$] principal amount of Designated Securities on
in each of the years through at 100% of their
principal amount plus accrued interest] [,together with [cumulative]
[noncumulative] redemptions at the option of the Company to retire an
additional [$] principal amount of Designated Securities in
the years through at 100% of their principal amount plus accrued
interest].
[If Securities are extendable debt Securities, insert --
EXTENDABLE PROVISIONS:
Securities are repayable on , [insert date and
years], at the option of the holder, at their principal amount with
accrued interest. Initial annual interest rate will be %, and
thereafter annual interest rate will be adjusted on ,
and to a rate not less than % of the effective annual
interest rate onU.S. Treasury obligations with -year maturities
as of the [insert date 15 days prior to maturity date] prior to such
[insert maturity date].]
[If Securities are Floating Rate debt Securities, insert --
- 2 -
<PAGE> 32
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and
thereafter will be adjusted [monthly] [on each , ,
and ] [to an annual rate of % above the average rate for
-year [month] [securities] [certificates of deposit] issued by
and [insert names of banks],] [and the annual interest rate
[thereafter] [from through ] will be the interest
yield equivalent of the weekly average per annum market discount rate
for -month Treasury bills plus % of Interest Differential
(the excess, if any, of (i) then current weekly average per annum
secondary market yield for -month certificates of deposit over (ii)
then current interest yield equivalent of the weekly average per annum
market discount rate for -month Treasury bills); from
and thereafter the rate will be the then current interest yield
equivalent plus % of Interest Differential].]
DEFEASANCE PROVISIONS:
TIME OF DELIVERY:
CLOSING LOCATION FOR DELIVERY OF SECURITIES:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]*:
___________
*A description of particular tax, accounting or other unusual features
(such as the addition of event risk provisions) of the Designated Securities
should be set forth, or referenced to an attached and accompanying description,
if necessary to ensure agreement as to the terms of the Securities to be
purchased and sold. Such a description might appropriately be in the form in
which such features will be described in the Prospectus Supplement for the
offering.
- 3 -
<PAGE> 33
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the consolidated interim financial statements, selected financial
data, pro forma financial information, financial forecasts and/or
condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
[separately] furnished to the representative or representatives of the
Underwriters (the "Representatives") such term to include an
Underwriter or Underwriters who act without any firm being designated
as its or their representatives [and are attached hereto];
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which [have been
separately furnished to the Representatives][are attached hereto]; and
on the basis of specified procedures including inquiries of officials
of the Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply
as to form in all material respects with the applicable accounting
requirements of the [Act and the Exchange] Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
- 1 -
<PAGE> 34
with the applicable accounting requirements of the [Act and the
Exchange] Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d) respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the
unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus or included in the
Company's
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<PAGE> 35
Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and
any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated
by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current
assets or net assets or shareholders' equity or other items
specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes,
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<PAGE> 36
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E)
there were any decreases in total revenues or net income or
net income per share or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by
the Representatives which are derived from the general accounting
records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part
II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein)
as defined in the Underwriting Agreement as of the date of the letter delivered
on the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
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<PAGE> 37
ANNEX III
Alabama-Shepherd Shopping Center
DeVargas Center Joint Venture
Eastdale Center, Ltd.
Eastex Venture
East Town, Lake Charles Co.
Jacinto City, Ltd.
Maine J.V. (Lisbon Street Shopping Trust)
Main/OST, Ltd.
Mansfield Road Associates
Mesquite Center, Ltd.
Northwest Hollister Venture
Phelan Boulevard Venture
Randall's Center/Lake Houston Parkway
Rosenberg, Ltd.
Sheldon Center, Ltd.
South-Loop-Long-Wayside Company
Southridge Plaza Venture
Steeplechase Mall Joint Venture
WRI/Palans Venture
Yale/20 Venture
York Townhouse Apartments
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<PAGE> 1
Exhibit (1)(b)
Draft 2/3/95
WEINGARTEN REALTY INVESTORS
Common Shares and Preferred Shares
______________________
Underwriting Agreement
___________, 199_
[To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.]
Ladies and Gentlemen:
From time to time Weingarten Realty Investors, a Texas real estate
investment trust (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with
such additions and deletions as the parties thereto may determine, and, subject
to the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its shares of beneficial interest (the
"Shares") specified in Schedule II to such Pricing Agreement (with respect to
such Pricing Agreement, the "Designated Shares"). The Shares may include the
Company's common shares of beneficial interest, par value $.03 per share (the
"Common Shares"), or preferred shares of beneficial interest, par value $.03
per share (the "Preferred Shares").
The terms and rights of any particular issuance of Designated Shares
shall be as specified in the Pricing Agreement relating thereto [and in or
pursuant to the resolutions of the board of trust managers of the Company
identified in such Pricing Agreement].
1. Particular sales of Designated Shares may be made from time to
time to the Underwriters of such Shares, for whom the firms designated as
representatives of the Underwriters of such Shares in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting
<PAGE> 2
Agreement shall not be construed as an obligation of the Company to sell any of
the Shares or as an obligation of any of the Underwriters to purchase the
Shares. The obligation of the Company to issue and sell any of the Shares and
the obligation of any of the Underwriters to purchase any of the Shares shall
be evidenced by the Pricing Agreement with respect to the Designated Shares
specified therein. Each Pricing Agreement shall specify the aggregate number
of such Designated Shares, the initial public offering price of such Designated
Shares, the purchase price to the Underwriters of such Designated Shares, the
names of the Underwriters of such Designated Shares, the names of the
Representatives of such Underwriters and the number of such Designated Shares
to be purchased by each Underwriter and shall set forth the date, time and
manner of delivery of such Designated Shares and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Shares. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement on Form S-3 (File No.
33-_______) in respect of the Securities has been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each
in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration
statement, but including all documents incorporated by reference in
the prospectus contained therein, to the Representatives for each of
the other Underwriters have been declared effective by the Commission
in such form; no other document with respect to such registration
statement or document incorporated by reference therein has heretofore
been filed or transmitted for filing with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Securities Act of 1933 as
amended (the "Act") each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of
such registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or
filed with the Commission pursuant to Rule 424(a) under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of
such registration statement, including all exhibits
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<PAGE> 3
thereto and the documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of the
registration statement became effective, each as amended at the time
such part of the registration statement became effective, are
hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Shares, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of
such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Sections 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Shares in the
form in which it is filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when such
documents become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or
- 3 -
<PAGE> 4
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Shares through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Shares;
(c) The Registration Statement and the Prospectus conform,
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Shares through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Shares;
(d) The Company is a real estate investment trust duly
formed, validly existing and in good standing under the laws of the
State of Texas, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to transact business and
is in good standing in each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction, and
holds all authorizations, approvals, orders, licenses, certificates
and permits from all governmental authorities which are material to
the conduct of its business;
(e) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has power and
authority (corporate and other) to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect or a
prospective material adverse effect, on the condition,
- 4 -
<PAGE> 5
financial or otherwise, or the earnings or business affairs of the
Company and its subsidiaries considered as one enterprise; all of the
issued and outstanding capital stock of each such subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable
and is owned by the Company, directly or through subsidiaries (except
for Weingarten Properties, Inc., of which the Company owns
approximately 76% of the outstanding capital shares), free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity;
(f) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated
in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
there has not been any change in the capital stock of the Company or
any change in the consolidated long-term debt of the Company or any of
its subsidiaries or any decrease in consolidated net current assets or
net assets or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity
or results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus;
(g) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are
fully paid and non-assessable;
(h) The Shares have been duly authorized, and, when
Designated Shares are issued and delivered pursuant to this Agreement
and the Pricing Agreement with respect to such Designated Shares, such
Designated Shares will be duly and validly issued and fully paid and
non-assessable; and the Designated Shares will conform to the
description thereof contained in the Prospectus as amended or
supplemented with respect to such Designated Shares;
(i) The issue and sale of the Shares and the compliance by
the Company with all of the provisions of this Agreement and any
Pricing Agreement, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or
- 5 -
<PAGE> 6
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation
of the provisions of the Declaration of Trust or By-laws of the
Company or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their respective properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement or any
Pricing Agreement, except such as have been, or will have been prior
to the Time of Delivery, obtained under the Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Shares by the Underwriters;
(j) The statements set forth in the Prospectus under the
captions "Description of Common Shares," "Description of Preferred
Shares," "Plan of Distribution" and "Underwriting," insofar as they
purport to constitute a summary of the terms of the Shares, or to
describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair;
(k) Neither the Company nor any of its subsidiaries is in
violation of its charter or By-laws or in default in the performance
or observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or its properties may be bound;
(l) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(m) The financial statements set forth or incorporated by
reference in the Registration Statement present fairly the
- 6 -
<PAGE> 7
financial position and the results of operations of the Company and
its subsidiaries at the indicated dates and for the indicated periods.
Except us otherwise stated in the Registration Statement, such
financial statements have been prepared in accordance with generally
accepted accounting principles, applied on a consistent basis; and the
supporting schedules included in the Registration Statement present
fairly the information required to be stated therein;
(n) The Company and its subsidiaries have good and
indefeasible title in fee simple to all real property and interests in
real property owned by them and good and indefeasible title to all
personal property owned by them, in each case free and clear of all
liens, encumbrances and defects, except as are described in the
Prospectus [and except for properties subject to a pledge under the
Amended and Restated Loan Agreement of $80,000,000, executed January
22, 1993, between the Company and Texas Commerce Bank National
Association and under a Loan Agreement, dated August 6, 1987, between
the Company and the Variable Annuity Life Insurance Company, American
General Life Insurance Company, American General Life Insurance
Company of Delaware, Republic National Life Insurance Company and
American Amicable Life Insurance Company of Texas, as amended,] and
except for property owned in the joint ventures set forth in Annex III
hereto or such as do not materially affect the value of such property
and interests in the aggregate and do not interfere with the use made
and proposed to be made of such property and interests by the Company
and its subsidiaries taken as a whole; in the case of real property
and interests in real property, the Company and its subsidiaries have
obtained satisfactory confirmation (consisting of policies of title
insurance or binders therefor or opinions of counsel based upon the
examination of abstracts) confirming, except as is otherwise described
in the Prospectus, (a) that the Company and its subsidiaries have the
foregoing title to such real property and interests in real property;
provided, however, that in those cases in which such information is
not current, the Company and its subsidiaries do not have notice of
any material claim of any sort which has been asserted by anyone
adverse to the Company's or its subsidiaries foregoing title to such
real property and interests in real property, and (b) that the
instruments securing the indebtedness of third parties to the Company
or its subsidiaries create valid liens upon the real properties
described in such instruments enjoying the priorities intended,
subject only to exceptions to title which have no materially adverse
effect on the value of such real properties and interests; and any
real property and buildings held under lease by the Company or its
subsidiaries or leased by the Company or its subsidiaries to a third
party are held or leased by them under valid, binding and enforceable
leases conforming to the description thereof set forth in the
- 7 -
<PAGE> 8
Prospectus, with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property
and buildings by the Company or its subsidiaries or such third party;
(o) The Company has filed all federal, state and foreign
income tax returns which have been required to be filed on or before
the due date (taking into account all extensions of time to file) and
has paid or provided for all taxes indicated by said returns and all
assessments received by it to the extent that taxes have become due;
(p) Since January 1, 1985, the Company's form of
organization, share ownership and method of operation have satisfied,
and the Company intends to continue to satisfy, for the calendar year
1995 and subsequent taxable periods, the requirements of the Internal
Revenue Code of 1954 and 1986, as applicable, as amended (the "Code"),
for qualification of the Company as a "real estate investment trust";
the Company's management believes that the nature and value of the
Company's assets and the anticipated income of the Company for the
taxable year ending December 31, 1995 will enable the Company to
qualify as a real estate investment trust for that taxable year
(subject to the continuing qualification of the Company's share
ownership and the Company's filing of its federal income tax return
for that taxable year and electing to be treated as a real estate
investment trust);
(q) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company"
or an entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(r) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(s) Deloitte & Touche, L.L.P., who have certified certain
financial statements of the Company and its subsidiaries are
independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder; and
(t) Although the Company is aware of the presence of
hazardous substances, hazardous materials, toxic substances or waste
materials ("Hazardous Materials") on certain of its properties,
nothing has come to the attention of the Company which, at this time,
would lead the Company to believe that the presence of such Hazardous
Materials, when considered in the aggregate, would materially
adversely affect the financial
- 8 -
<PAGE> 9
condition of the Company. In connection with the construction on or
operation and use of the properties owned or leased by the Company or
any of its subsidiaries, the Company represents that, as of the date
of this Agreement, it has no knowledge of any material failure by the
Company or any of its subsidiaries to comply with all applicable
local, state and federal environmental laws, regulations, ordinances
and administrative and judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and disposal of
any Hazardous Materials.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Representatives of the release of
such Designated Shares, the several Underwriters propose to offer such
Designated Shares for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Certificates for the Designated Shares to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in definitive
form, and in such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Shares.
[As compensation to the Underwriters for their commitments to purchase
the Designated Shares, the Company at the Time of Delivery will pay to the
Representatives, for the accounts of the several Underwriters, an amount per
share set forth in the Pricing Agreement relating to the Designated Shares to
be sold by the Company thereunder.]
5. The Company agrees with each of the Underwriters of any Designated
Shares:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Shares in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of business on the
second business day following the execution and delivery of the
Pricing Agreement relating to the applicable Designated Shares or, if
applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supple-
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<PAGE> 10
mented after the date of the Pricing Agreement relating to such Shares
and prior to the Time of Delivery for such Shares which shall be
disapproved by the Representatives for such Shares promptly after
reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of
a prospectus is required in connection with the offering or sale of
such Shares, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed with the Commission, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Shares, of the
suspension of the qualification of such Shares for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or Prospectus
or for additional information; and, in the event of the issuance of
any such stop order or of any such order preventing or suspending the
use of any prospectus relating to the Shares or suspending any such
qualification, to promptly use every reasonable effort to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Shares for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of such Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus
as amended or supplemented in such quantities as the Representatives
may from time to time reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Shares and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when such
Prospectus is delivered, not
- 10 -
<PAGE> 11
misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Act or the Exchange Act, to
notify the Representatives and to file such document and to prepare
and furnish without charge to each Underwriter and to any dealer in
securities as many copies as the Representatives may from time to time
reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect
such compliance;
(d) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Shares and continuing to and including
the later of (i) the termination of trading restrictions for such
Designated Shares, as notified to the Company by the Representatives
and (ii) the Time of Delivery for such Designated Shares, not to
offer, sell, contract to sell or otherwise dispose of shares of
beneficial interest of the Company which are substantially similar to
such Designated Shares, without the prior written consent of the
Representatives;
(f) To use the net proceeds received by it from the sale of
the Shares in the manner specified in the Prospectus under the caption
"Use of Proceeds";
(g) To elect to qualify as a "real estate investment trust"
under the Internal Revenue Code of 1986, as amended (the "Code"), and
to use every reasonable effort to continue to meet the requirements to
qualify as a "real estate investment trust"; and
(h) To comply with all of the provisions of Section
517.075 of the Florida Statutes, and all regulations promulgated
thereunder relating to issuers doing business with Cuba.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the
- 11 -
<PAGE> 12
preparation, printing and filing of the Registration Statement, any Preliminary
Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing any Agreement among Underwriters, this
Agreement, any Pricing Agreement, any Blue Sky Survey and any other documents
in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky Survey;
[(iv) any fees charged by securities rating services for rating the Shares;]
(v) any filing fees incident to any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Shares; (vi) the
cost of preparing certificates for the Shares (vii) the fees and expenses of
any transfer agent or registrar or dividend disbursing agent; and (viii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section.
It is understood, however, that, except as provided in this Section and
Sections 8 and 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Shares by them, and any advertising expenses connected with any offers
they may make.
7. The obligations of the Underwriters of any Designated Shares under
the Pricing Agreement relating to such Designated Shares shall be subject, in
the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Shares are, at and as of the Time of Delivery for such Designated Shares, true
and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Shares shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
- 12 -
<PAGE> 13
(b) Brown & Wood, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated the
Time of Delivery for such Designated Shares, with respect to the
matters covered in paragraphs (i), (ii), (v), (vii), (viii), (xi) and
(xv) of subsection (c) below as well as such other related matters as
the Representatives may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Andrews & Kurth L.L.P., counsel for the Company, shall
have furnished to the Representatives their written opinion, dated the
Time of Delivery for such Designated Shares, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company is a real estate investment trust
duly formed, validly existing and in good standing under the
laws of the State of Texas and is entitled to the benefits of
the Texas Real Estate Investment Trust Act.
(ii) The Company has the power and authority
(corporate and other) to own its properties and to conduct its
business as described in the Prospectus as amended or
supplemented.
(iii) The Company is duly qualified to transact
business and is in good standing in each jurisdiction in which
it owns or leases properties, or conducts any business, so as
to require such qualification or is subject to no material
liability, or disability by reason of the failure to be so
qualified in any such jurisdiction.
(iv) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has power and authority (corporate and other)
to own, lease and operate its properties and to conduct its
business as described in the Prospectus and, to the best of
their knowledge and information, is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure
to so qualify would not have a material adverse effect or a
prospective material adverse effect on the condition,
financial or otherwise, or the earnings or business affairs of
the Company and its subsidiaries considered as one enterprise;
all of the issued and outstanding capital stock of each such
subsidiary has been duly authorized
- 13 -
<PAGE> 14
and validly issued, is fully paid and non-assessable and is owned by
the Company, directly or through subsidiaries (except for Weingarten
Properties, Inc., of which the Company owns approximately 76% of the
outstanding capital shares), free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(v) The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented and
all of the issued shares of capital stock of the Company
(including the Designated Shares being delivered at such Time
of Delivery) have been duly and validly authorized and issued
and are fully paid and non-assessable.
(vi) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the
Company or any its subsidiaries is the subject which, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others.
(vii) This Agreement and the Pricing Agreement with
respect to the Designated Shares have been duly authorized,
executed and delivered by the Company.
(viii) The Designated Shares conform to the description
thereof in the Prospectus as amended or supplemented.
(ix) The issue and sale of the Designated Shares and
the compliance by the Company with all of the provisions of
this Agreement and the Pricing Agreement with respect to the
Designated Shares and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any
of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the Declaration of Trust or By-laws of
- 14 -
<PAGE> 15
the Company or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of
their respective properties.
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Designated Shares or the consummation by the Company of
the transactions contemplated by this Agreement or the Pricing
Agreement, except such as have been obtained under the Act and
such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Designated Shares by the Underwriters.
(xi) The information set forth in the Prospectus, under
the captions "Description of Common Shares," "Description of
Preferred Shares," "Plan of Distribution" and "Underwriting,"
to the extent such information constitutes matters of law,
summaries of legal matters, documents or proceedings, or legal
conclusions, has been reviewed by them and is correct.
(xii) Based upon review of such documents, certificates
and records as counsel has deemed necessary to express its
opinion, upon its discussions with management of the Company,
independent accountants for the Company and with certain
shareholders of the Company and based upon the facts set forth
in the Registration Statement, certain assumptions and certain
representations made to it by the Company's management and by
certain of its shareholders, counsel is of the view that, as
of the date of its opinion the Company's form of organization
and its share ownership is such as to enable the Company to
meet the requirements of the Code for qualifications as a real
estate investment trust thereunder and that its income, assets
and method of operations have allowed it to qualify as a real
estate investment trust for its taxable year ended December
31, 1985 and all years thereafter, and its currently
contemplated future assets, income and method of operations
should put it in a position to qualify to be treated as a real
estate investment trust for the calendar year 1995.
(xiii) The Company is not an "investment company" or an
entity "controlled" by a "investment company," as such terms
are defined in the Investment Company Act.
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<PAGE> 16
(xiv) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder;
and they have no reason to believe that any of such documents,
when they became effective or were so filed, as the case may
be, contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or, in the case of other documents which were
filed under the Act or the Exchange Act with the Commission,
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made when such documents were so filed, not misleading.
(xv) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Shares (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the
rules and regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or
the Prospectus, except for those referred to in the opinion in
subsection (xi) of this Section 7(c), they have no reason to
believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company
prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the
Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of
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<PAGE> 17
the circumstances under which they were made, not misleading
or that as of the Time of Delivery, either the Registration
Statement or the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement
of a material fact or omits to state a material fact necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
they do not know of any amendment to the Registration
Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit
to the Registration Statement or required to be incorporated
by reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or
the Prospectus as amended or supplemented which are not filed
or incorporated by reference or described as required.
(d) On the date of the Pricing Agreement for such Designated
Shares and at the Time of Delivery for such Designated Shares, the
independent accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated the effective date of
the Registration Statement or the date of the most recent report filed
with the Commission containing financial statements and incorporated
by reference in the Registration Statement, if the date of such report
is later than such effective date, and a letter dated such Time of
Delivery, respectively, to the effect set forth in Annex II hereto,
and with respect to such letter dated such Time of Delivery, as to
such other matters as the Representatives may reasonably request and
in form and substance satisfactory to the Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Shares any loss or interference with its business from
fire, explosion, flood or other calamity, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as amended prior to the date
of the Pricing Agreement relating to the Designated Shares, and (ii)
since the respective dates as of which information is given in the
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Shares there shall not have been any change
in the capital stock of the
- 17 -
<PAGE> 18
Company or any change in the consolidated long-term debt of the
Company and its subsidiaries or any decrease in consolidated net
current assets or net assets or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus as amended prior to the date
of the Pricing Agreement relating to the Designated Shares, the effect
of which, in any such case described in Clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Designated Shares on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented
relating to the Designated Shares;
(f) On or after the date of the Pricing Agreement relating to
the Designated Shares (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or preferred shares by
any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities or
preferred shares;
(g) On or after the date of the Pricing Agreement relating to
the Designated Shares there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Designated Shares on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented
relating to the Designated Shares; and
(h) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Shares a certificate or certificates of officers of the
Company satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the
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<PAGE> 19
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (e) of this Section and as to such other
matters as the Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint
or several, to which such Underwriter may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the
Shares, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the
Shares, or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter of Designated Shares through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Shares.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Shares, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged
- 19 -
<PAGE> 20
untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and
any other prospectus relating to the Shares, or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action
or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection,
notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection
for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection
with the defense thereof other than reasonable costs of investigation.
In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect
to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or
not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault,
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<PAGE> 21
culpability or a failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated
Shares on the other from the offering of the Designated Shares to
which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or
if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand
and the Underwriters of the Designated Shares on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and such
Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting
discounts and commissions received by such Underwriters. The relative
fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d).
The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any
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<PAGE> 22
such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
applicable Designated Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated
Shares in this subsection (d) to contribute are several in proportion
to their respective underwriting obligations with respect to such
Shares and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the Act;
and the obligations of the Underwriters under this Section 8 shall be
in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions,
to each officer and trust manager of the Company and to each person,
if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Shares which it has agreed to purchase under
the Pricing Agreement relating to such Designated Shares, the
Representatives may in their discretion arrange for themselves or
another party or other parties to purchase such Designated Shares on
the terms contained herein. If within thirty-six hours after such
default by any Underwriter the Representatives do not arrange for the
purchase of such Designated Shares, then the Company shall be entitled
to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to the Representatives to
purchase such Designated Shares on such terms. In the event that,
within the respective prescribed period, the Representatives notify
the Company that they have so arranged for the purchase of such
Designated Shares, or the Company notifies the Representatives that it
has so arranged for the purchase of such Designated Shares, the
Representatives or the Company shall have the right to postpone the
Time of Delivery for such Designated Shares for a period of not more
than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements,
and the Company agrees to file promptly any amendments or
- 22 -
<PAGE> 23
supplements to the Registration Statement or the Prospectus which in
the opinion of the Representatives may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had
originally been a party to the Pricing Agreement with respect to such
Designated Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Shares of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of such Designated Shares
which remains unpurchased does not exceed one-tenth of the aggregate
number of the Designated Shares, then the Company shall have the right
to require each non-defaulting Underwriter to purchase the number of
Designated Shares which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Shares and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Designated Shares which such Underwriter
agreed to purchase under such Pricing Agreement) of the Designated
Shares of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Shares of a defaulting Underwriter or
Underwriters by the Representatives and the Company as provided in
subsection (a) above, the aggregate number of Designated Shares which
remains unpurchased exceeds one-tenth of the aggregate number of the
Designated Shares, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (b) above
to require non-defaulting Underwriters to purchase Designated Shares
of a defaulting Underwriter or Underwriters, then the Pricing
Agreement relating to such Designated Shares shall thereupon
terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the
Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf
- 23 -
<PAGE> 24
of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or trust manager or controlling person of the Company,
and shall survive delivery of and payment for the Shares.
11. If any Pricing Agreement shall be terminated pursuant to Section
9 hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Shares covered by such Pricing Agreement except
as provided in Section 6 and Section 8 hereof. If this Agreement shall be
terminated as a result of any of the conditions set forth in Section 7 hereof
(other than Section 7(g)(i), (iii) or (iv)) not being satisfied, the Company
will reimburse the Underwriters through the Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees and disbursements of counsel, reasonably incurred by the Underwriters in
making preparations for the purchase, sale and delivery of such Designated
Shares, but the Company shall then be under no further liability to any
Underwriter with respect to such Designated Shares except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Shares shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if
any, as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth in
the Pricing Agreement; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth
in the Registration Statement: Attention: Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Sections 8 and 10 hereof, the officers and trust managers of
the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing, Agreement. No
- 24 -
<PAGE> 25
purchaser of any of the Shares from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
- 25 -
<PAGE> 26
If the foregoing is in accordance with your understanding, please sign
and return to us ____ counterparts hereof.
Very truly yours,
WEINGARTEN REALTY INVESTORS
By: ______________________________
Name:
Title:
Accepted as of the date hereof:
[Names of Representatives]
By________________________
- 26 -
<PAGE> 27
ANNEX I
Pricing Agreement
[Name(s) of Representative(s)]
As Representatives of the several
Underwriters named in Schedule I hereto,
[Name and address of Representative]
_________________, 199_
Dear Sirs:
Weingarten Realty Investors, a Texas real estate investment trust (the
"Company"), proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated _______________ __, 199_ (the "Underwriting
Agreement"), between the Company on the one hand and [names of Representatives
named therein] on the other hand, to issue and sell to the Underwriters named
in Schedule I hereto (the "Underwriters") the Shares specified in Schedule II
hereto (the "Designated Shares"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein; and each of the representations and
warranties set forth therein shall be deemed to have been made at and as of the
date of this Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in
relation to the Prospectus as amended or supplemented relating to the
Designated Shares which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated
to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Shares pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated
- 1 -
<PAGE> 28
Shares, in the form heretofore delivered to you is now proposed to be filed
with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the number of Designated Shares set forth opposite the name of such
Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us ____ counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
WEINGARTEN REALTY INVESTORS
By: ______________________________
Name:
Title:
Accepted as of the date hereof:
[Name of Representatives]
By_______________________
On behalf of each of the Underwriters
- 2 -
<PAGE> 29
SCHEDULE I
Number of
Designated Shares
Underwriter to be Purchased
----------- -----------------
____________
Total . . . . . . . . . . . . . . . . . .
============
<PAGE> 30
SCHEDULE II
TITLE OF DESIGNATED SHARES:
[DATE OF BOARD RESOLUTION ESTABLISHING DESIGNATED SHARES:]
NUMBER OF DESIGNATED SHARES:
INITIAL OFFERING PRICE TO PUBLIC:
[$ ___ per share] [Formula]
PURCHASE PRICE BY UNDERWRITERS:
[$ ___ per share] [Formula]
[COMMISSION PAYABLE TO UNDERWRITERS:
$ ___ per share]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[New York] Clearing House funds
DIVIDEND RATE:
[ % per annum]
DIVIDEND PAYMENT DATES:
[months and dates]
DIVIDEND RIGHTS:
[Non-] cumulative, [deferred]
VOTING RIGHTS:
LIQUIDATION RIGHTS:
PREEMPTIVE AND CONVERSION RIGHTS:
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Shares may be redeemed, [otherwise than through the
sinking fund,] in whole or in part at the option of the Company, [on
or after......., at the following redemption prices:
- 1 -
<PAGE> 31
Redemption
Year Price
---- ----------
and thereafter at $.... per share, together in each case with accrued
dividends to the redemption date.]
[on any dividend payment date falling in or after ,
, at the election of the Company, at a redemption price
equal to the stated amount thereof, plus accrued dividends to the
date of redemption.]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law]
SINKING FUND PROVISIONS:
[None]
[The Designated Shares are entitled to the benefit of a sinking fund
to retire Designated Shares on in each of the
years through at 100% of their stated amount plus
accrued dividends] [, together with [cumulative] [noncumulative]
redemptions at the option of the Company to retire an additional
Designate Shares in the years through at
100% of their stated amount plus accrued dividends].
TIME OF DELIVERY:
CLOSING LOCATION FOR DELIVERY OF SHARES:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]*:
___________
*A description of particular tax, accounting or other unusual features
(such as the addition of event risk provisions) of the Designated Shares should
be set forth, or referenced to an attached and accompanying description, if
necessary to ensure agreement as to the terms of the Shares to be purchased and
sold. Such a
- 2 -
<PAGE> 32
description might appropriately be in the form in which such features will be
described in the Prospectus Supplement for the offering.
- 3 -
<PAGE> 33
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the consolidated interim financial statements, selected financial
data, pro forma financial information, financial forecasts and/or
condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
[separately] furnished to the representative or representatives of the
Underwriters (the "Representatives") such term to include an
Underwriter or Underwriters who act without any firm being designated
as its or their representatives [and are attached hereto];
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which [have been
separately furnished to the Representatives][are attached hereto]; and
on the basis of specified procedures including inquiries of officials
of the Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply
as to form in all material respects with the applicable accounting
requirements of the [Act and the Exchange] Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
- 1 -
<PAGE> 34
with the applicable accounting requirements of the [Act and the
Exchange] Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus and included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most recent fiscal year
agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for five
such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing
procedures that caused them to believe that this information does not
conform in all material respects with the disclosure requirements of
Items 301, 302, 402 and 503(d) respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus and/or
included or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations,
or (ii) any material modifications should be made to the
unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus or included in the
Company's
- 2 -
<PAGE> 35
Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and
any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were not
included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the
pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior
to the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital
stock upon exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon conversions of
convertible securities, in each case which were outstanding on
the date of the latest balance sheet included or incorporated
by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current
assets or net assets or shareholders' equity or other items
specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes,
- 3 -
<PAGE> 36
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the
Prospectus to the specified date referred to in Clause (E)
there were any decreases in total revenues or net income or
net income per share or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by
the Representatives which are derived from the general accounting
records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part
II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein)
as defined in the Underwriting Agreement as of the date of the letter delivered
on the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Shares for purposes
of the letter delivered at the Time of Delivery for such Designated Shares.
- 4 -
<PAGE> 37
ANNEX III
Alabama-Shepherd Shopping Center
DeVargas Center Joint Venture
Eastdale Center, Ltd.
Eastex Venture
East Town, Lake Charles Co.
Jacinto City, Ltd.
Maine J.V. (Lisbon Street Shopping Trust)
Main/OST, Ltd.
Mansfield Road Associates
Mesquite Center, Ltd.
Northwest Hollister Venture
Phelan Boulevard Venture
Randall's Center/Lake Houston Parkway
Rosenberg, Ltd.
Sheldon Center, Ltd.
South-Loop-Long-Wayside Company
Southridge Plaza Venture
Steeplechase Mall Joint Venture
WRI/Palans Venture
Yale/20 Venture
York Townhouse Apartments
- 1 -
<PAGE> 1
Exhibit (4)(a)
_____________________________________________________
WEINGARTEN REALTY INVESTORS
TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
Trustee
__________________________
Indenture
Dated as of [ ], 1995
_________________________
Senior Debt Securities
_____________________________________________________
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Acquired Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Annual Service Charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Trust Managers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CEDEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request and Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Consolidated Income Available for Debt Service . . . . . . . . . . . . . . . . . . . . . . . . 4
Conversion Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Disqualified Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
European Communities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
European Monetary System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Exchange Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Funds from Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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Indexed Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . 9
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Preferred Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Repayment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Repayment Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Security Register and Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Significant Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Total Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trust Indenture Act or TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trust Managers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Undepreciated Real Estate Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Unencumbered Total Asset Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 105. Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 107. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 108. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 111. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 112. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 113. Immunity of Shareholders, Trust Managers,
Officers and Agents of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 203. Securities Issuable in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 307. Payment of Interest; Interest
Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 402. Application of Trust Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 502. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, Interest
and Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 512. Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 514. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 515. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 602. Certain Duties and Responsibilites . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 604. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 608. Corporate Trustee Required; Eligibility;
Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 609. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 610. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 611. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 612. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 703. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 704. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
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 . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 802. Rights and Duties of Successor
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
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SECTION 803. Officers' Certificate and Opinion of
Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any,
Interest and Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1003. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1004. Limitations on Incurrence of Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1005. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1006. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1007. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1008. Payment of Taxe s and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1009. Provision of Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1010. Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1011. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1012. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1013. Maintenance of Value of Unencumbered
Assets to Unsecured Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1303. Exercise of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's
Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1402. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1502. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1503. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 1504. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
SECTION 1506. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
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TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
vii
<PAGE> 9
WEINGARTEN REALTY INVESTORS
Reconciliation and tie between Trust Indenture Act of 1939
(the "1939 Act") and Indenture dated as of __________, 1995
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C> <C>
Section 310(a)(1) ................................. 607
(a)(2) ................................. 607
(b) .................................... 607, 608
Section 312(a) .................................... 704
Section 312(c) .................................... 701
Section 313(a) .................................... 702
(c) .................................... 702
Section 314(a) .................................... 703
(a)(4) ................................. 1010
(c)(1) ................................. 102
(c)(2) ................................. 102
(e) .................................... 102
Section 315(b) .................................... 601
Section 316(a) (last sentence) .................... 101 ("Outstanding")
(a)(1)(A) .............................. 512
(a)(1)(B) .............................. 513
(b) .................................... 508
Section 317(a)(1) ................................. 503
(a)(2) ................................. 504
Section 318(a) .................................... 111
(c) .................................... 111
</TABLE>
______________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939
Act, which provides that the provisions of Sections 310 to and including 317 of
the 1939 Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
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<PAGE> 10
INDENTURE, dated as of __________, 1995, between WEINGARTEN REALTY
INVESTORS, a real estate investment trust organized under the laws of the State
of Texas (hereinafter called the "Company"), having its principal office at
2600 Citadel Plaza Drive, Houston, Texas 77008 and TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as Trustee hereunder (hereinafter called the "Trustee"),
having its principal office at 600 Travis, Houston, Texas 77002.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes senior debt securities (hereinafter called the "Securities")
evidencing its unsecured and unsubordinated indebtedness, and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to 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 ("TIA"), that are deemed to be incorporated into this
Indenture 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 ("Holders"), 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
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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.
"Acquired Debt" means Debt of a Person (i) existing at the time
such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Debt incurred
in connection with, or in contemplation of, such Person becoming a Subsidiary
or such acquisition. Acquired Debt shall be deemed to be incurred on the date
of the related acquisition of assets from any Person or the date the acquired
Person becomes a Subsidiary.
"Act", 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.
"Annual Service Charge" as of any date means the maximum amount
which is payable in any period for interest on, and original issue discount of,
Debt of the Company and its Subsidiaries and the amount of dividends which are
payable in respect of any Disqualified Stock.
"Authenticating Agent" means any authenticating agent appointed
by the Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not
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published on Saturdays, Sundays or holidays, and of general circulation in each
place in connection with which the term is used or in the financial community
of each such place. Whenever successive publications are required to be made
in Authorized Newspapers, the successive publications may be made in the same
or in different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to
Section 201 which is payable to bearer.
"Board of Trust Managers" means the board of Trust Managers 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 of Trust Managers and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in that Place
of Payment or particular location are authorized or required by law, regulation
or executive order to close.
"Capital Shares" means, with respect to any Person, any capital
shares (including preferred shares), interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for capital shares),
warrants or options to purchase any thereof.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A.,
or its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the 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.
"Common Depositary" has the meaning specified in Section 304(b).
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"Common Shares" means, with respect to any Person, Capital
Shares issued by such Person other than Preferred Shares.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by one Trust Manager
and the Company's chairman of the Board, its Chief Executive Officer, its
president or a Vice President, its Treasurer, an Assistant Treasurer, its
Controller, nan Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated Income Available for Debt Service" for any period
means Funds from Operations of the Company and its Subsidiaries plus amounts
which have been deducted for interest on Debt of the Company and its
Subsidiaries.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU
both within the European Monetary System and for the settlement of transactions
by public institutions of or within the European Communities or (iii) any
currency unit (or composite currency) other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at 600
Travis, 8th Floor, Houston, Texas 77002. For purposes of Sections 3.01 and
10.02 hereof, the Corporate Trust Office shall also include its office, which
at the date hereof is located at 1900 Pacific, 16th Floor, Dallas, Texas 75201
and the office of the Trustee's agent located on the date of execution of the
Indenture at 80 Broad Street, 4th Floor, New York, New York, 10004.
"corporation" includes corporations, associations, partnerships,
companies and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of the Company or any Subsidiary means any indebtedness
of the Company, or any Subsidiary, other than contingent liabilities (except to
the extent set forth in (iii) below), in
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respect of (without duplication) (i) borrowed money or evidenced by bonds,
notes, debentures or similar instruments, (ii) indebtedness secured by any
mortgage, pledge, lien, charge, encumbrance or any security interest existing
on property owned by the Company or any Subsidiary, (iii) the reimbursement
obligations, contingent or otherwise, in connection with any letters of credit
actually issued or amounts representing the balance deferred and unpaid of the
purchase price of any property or services, except any such balance that
constitutes an accrued expense or trade payable, or all conditional sale
obligations or obligations under any title retention agreement, (iv) the
principal amount of all obligations of the Company or any Subsidiary with
respect to redemption, repayment or other repurchase of any Disqualified Stock
or (v) 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 to the extent, in the case of items of indebtedness
under (i) through (iii) above, that any such items (other than letters of
credit) would appear as a liability on the Company's consolidated balance sheet
in accordance with GAAP, but does not include any obligation of the Company or
any Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise,
Debt of another Person (other than the Company or any Subsidiary) unless and
until the Company or such Subsidiary shall become directly liable in respect
thereof).
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" means, with respect to any Person, any
Capital Shares of such Person which by the terms of such Capital Shares (or by
the terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise (i)
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, (ii) is convertible into or exchangeable or exercisable for Debt or
Disqualified Stock or (iii) is redeemable at the option of the holder thereof,
in whole or in part, in each case on or prior to the Stated Maturity of the
Securities.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
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"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Date" has the meaning specified in Section 304(b).
"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 net income plus
depreciation, amortization and extraordinary charges excluding gains and losses
on sales of iesproperties and securities.
"GAAP" means generally accepted accounting principles, as 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
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indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, and shall include the terms of particular series of
Securities established as contemplated by Section 301; provided, however, that,
if at any time more than one Person is acting as Trustee under this instrument,
"Indenture" shall mean, with respect to any one or more series of Securities
for which such Person is Trustee, this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of the or those particular series of Securities for
which such Person is Trustee established as contemplated by Section 301,
exclusive, however, of any provisions or terms which relate solely to other
series of Securities for which such Person is not Trustee, regardless of when
such terms or provisions were adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such Person,
as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section 1011,
includes such Additional Amounts.
"Interest Payment Date", 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 a Trust
Manager and an executive officer 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
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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 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
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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.
"Preferred Shares" means, with respect to any Person, Capital
Shares issued by such Person that are entitled to a preference or
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priority over any other capital shares issued by such Person upon any
distribution of such Person's assets, whether by dividend or upon liquidation.
"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 which is
registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the
date specified for that purpose as contemplated by Section 301, whether or not
a Business Day.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment by
or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security
to be repaid at the option of the Holder, the price at which it is to be repaid
by or pursuant to this Indenture.
"Representative" means the indenture trustee or other trustee,
agent or representative for an issue of Senior Debt.
"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, any corporate
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
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Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated under the Securities Act of 1933) of the 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.
"Total Assets" as of any date means the sum of (i) the Company's
Undepreciated Real Estate Assets and (ii) all other assets of the Company
determined in accordance with GAAP (but excluding goodwill and unamortized debt
costs).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trust Managers" means the individuals comprising the Board of
Trust Managers of the Company.
"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.
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"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Company
and its Subsidiaries on such date, before depreciation and amortization
determined on a consolidated basis in accordance with GAAP.
"Unencumbered Total Asset Value" means as of any date the
sum of the Company's Total Assets which are unencumbered by any mortgage, lien,
charge, pledge or security interest.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the
time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the 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.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1010) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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
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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. 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
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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.
In the absence of any such record date fixed by the Company,
regardless as to whether a solicitation of the Holders is occurring on behalf
of the Company or any Holder, the Trustee may, at its option, fix in advance a
record date for the determination of such Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Trustee shall have no obligation to do so. Any such record date
shall be a date not more than 30 days prior to the first solicitation of
Holders generally in connection therewith no later than the date of such
solicitation.
(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.
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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 600 Travis, Houston, Texas
77002,
(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 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 New York City 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
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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 accor-
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dance with the law of the State of New York. This Indenture is subject to the
provisions of the TIA that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date,
Stated Maturity or Maturity of any Security 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) 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. Immunity of Shareholders, Trust Managers, Officers
and Agents of the Company. In accordance with Article 15 of the Amended and
Restated Declaration of Trust of the Company ("Declaration of Trust"), the
Trustee recognizes and agrees that the obligations of the Company under the
Indenture and the Securities and all documents delivered in the name of the
Company in connection herewith and therewith do not and shall not constitute
personal obligations of the Trust Managers, officers, employees, agents or
shareholders of the Company or any of them, and shall not involve any claim
against or personal liability on the part of any of them, and that all persons
including the Trustee shall look solely to the assets of the Company for the
payment of any claim thereunder or for the performance thereof and shall not
seek recourse against such Trust Managers, officers, employees, agents or
shareholders of the Company or any of them or any of their personal assets for
such satisfaction. The performance of the obligations of the Company under the
Indenture and the Securities and all documents delivered in the name of the
Company in connection therewith shall not be deemed a waiver of any rights or
powers of the Company, Trust Managers or shareholders under the Declaration of
Trust.
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
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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 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.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Trustee
By_______________________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities
of or within a series are issuable in global form, as specified as contemplated
by Section 301, then, notwithstanding clause (8) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
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
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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),
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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 Sections 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 Borough of Manhattan, New York City, 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, 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
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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, and in any integral multiple thereof, 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;
(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)
or interest or 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 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 so payable;
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(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 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;
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<PAGE> 33
(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) whether and under what circumstances the Company
will pay Additional Amounts as contemplated by Section 1011 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);
(22) the obligation, if any, of the Company to
permit the conversion of the Securities of such series into the
Company's Common Shares or Preferred Shares, 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); and
(23) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to
any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy
of an appropriate record of such action(s) shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the terms of
the Securities of such series.
SECTION 302. Denominations. The Securities of each series shall
be issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in Dollars,
in the absence of any such provisions with respect to the Securities of any
series, the Registered Securities of such series, other than Registered
Securities issued in global form
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(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, and in any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf
of the Company by a Trust Manager and its Chairman, its Chief Executive
Officer, its President, its Treasurer or one of its Vice Presidents and
attested by its Secretary or one of its Assistant Secretaries. The signature
of any of these individuals on the Securities and coupons may be manual or
facsimile signatures of the present or any future such authorized officer and
trustee 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, unless otherwise specified with respect to any series
of Securities pursuant to Section 301, a Bearer Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Security shall have furnished a certificate to Euroclear or Cedel,
as the case may be, in the form set forth in Exhibit A-1 to this Indenture or
such other certificate as may be specified with respect to any series of
Securities pursuant to Section 301, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date on
which any temporary Security first becomes exchangeable for such Bearer
Security in accordance with the terms of such temporary Security and this
Indenture. 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 or the Authenticating Agent shall not authenticate and deliver
any Bearer Security unless all appurtenant coupons for interest then matured
have been detached and cancelled.
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If all of the Securities of any series are not to be issued at
one time and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such Company Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and determining
the terms of particular Securities of such series, such as interest rate 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
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issued at one time, it shall not be necessary to deliver an Officers'
Certificate otherwise required pursuant to Section 301 or a Company
Order, or an Opinion of Counsel or an Officers' Certificate otherwise
required pursuant to the preceding paragraph at the time of issuance of
each Security of such series, but such order, opinion and certificates,
with appropriate modifications to cover such future issuances, shall be
delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security 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
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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 The
Depository Trust Company. If any such temporary Security is issued in global
form, then such temporary global Security shall, unless otherwise provided
therein, be delivered to the London office of a 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, or its agent, 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
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portion of such temporary global Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by CEDEL as to the portion of such temporary global Security held for
its account then to be exchanged, each in the form set forth in Exhibit A-2 to
this Indenture or in such other form as may be established pursuant to Section
301; and provided further that definitive Bearer Securities shall be delivered
in exchange for a portion of a temporary global Security only in compliance
with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may
be established pursuant to Section 301), dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise
specified in such temporary global Security, any such exchange shall be made
free of charge to the beneficial owners of such temporary global Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like unless such Person takes
delivery of such definitive Securities in person at the offices of Euroclear or
CEDEL. Definitive Securities in bearer form to be delivered in exchange for
any portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
and CEDEL on such Interest Payment Date upon delivery by Euroclear and CEDEL to
the Trustee of a certificate or certificates in the form set forth in Exhibit
A-2 to this Indenture (or in such other forms as may be established pursuant to
Section 301), for credit without further interest on or after such Interest
Payment Date to the respective accounts of Persons who are the beneficial
owners of such temporary global Security on such Interest Payment Date and who
have each delivered to Euroclear or CEDEL, as the case may be, a 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
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certifications made pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section 304(b) and of the
third paragraph of Section 303 of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary global Security with
respect to which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Exchange Date or the
date of certification if such date occurs after the Exchange Date, without
further act or deed by such beneficial owners. Except as otherwise provided in
this paragraph, no payments of principal or interest owing with respect to a
beneficial interest in a temporary global Security will be made unless and
until such interest in such temporary global Security shall have been exchanged
for an interest in a definitive Security. Any interest so received by
Euroclear and CEDEL and not paid as herein provided shall be returned to the
Trustee prior to the expiration of two years after such Interest Payment Date
in order to be repaid to the 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 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
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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, in their sole discretion, to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as
otherwise provided in Section 1002, interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency located outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such office or
agency in a permitted exchange for a Registered Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
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Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depositary for any
permanent global Security is The Depository Trust Company ("DTC"), then, unless
the terms of such global Security expressly permit such global Security to be
exchanged in whole or in part for definitive Securities, a global Security may
be transferred, in whole but not in part, only to a nominee of DTC, or by a
nominee of DTC to DTC, or to a successor to DTC for such global Security
selected or approved by the 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 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 not 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. If a Registered Security is issued in exchange for
any portion of a permanent global
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Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, interest
or Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such permanent global Security is
payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the 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 Sections 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 like tenor, provided that such Registered Security shall be
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simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment
at the option of the Holder, except the portion, if any, of such Security not
to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon appertaining to
it is surrendered to the Trustee or the 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 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
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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
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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 30
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 be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and
not less than 15 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 Company may, in its
discretion,
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direct the Trustee to publish 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 at
the office or agency in a Place of Payment for such series in exchange
for a Registered Security of such series after the close of business at
such office or agency on any Special Record Date and before the opening
of business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such proposed date of payment and
Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest
on the 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 be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
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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 be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
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; provided, however, where the Place of Payment is
located outside of the United States, the Paying Agent at such Place of Payment
may cancel the Securities surrendered to it for such purposes prior to
delivering the Securities to the Trustee. 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
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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 1011), 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
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(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 trust funds in trust for the purpose an amount in the currency
or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the
Trustee for cancellation, for principal (and premium, 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.
Notwithstanding the satisfaction and discharge of this Indenture, 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.
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.
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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, 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 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company (including
obligations under leases required to be capitalized on the balance sheet
of the lessee under generally accepted accounting principles, but not
including any indebtedness or obligations for which recourse is limited
to property purchased) in an aggregate principal amount in excess of
$10,000,000 or under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (including such leases
but not including such indebtedness or obligations for which recourse is
limited to property purchased) in an aggregate principal amount in
excess of $10,000,000 by the Company, whether such indebtedness now
exists or shall hereafter be created, which
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default shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable or such obligations being accelerated,
without such acceleration having been rescinded or annulled; 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 their 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) any other Event of Default provided with respect to
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S.
Code or any similar Federal or State law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
prin-
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cipal 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; provided, however, that if such Event of Default shall occur pursuant
to Section 501(6) or Section 501(7) hereof, such acceleration shall be
automatic and shall occur without notice.
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 or 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.
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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, 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, 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
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expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of
overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series,
of principal (and premium, if any) and interest and Additional Amounts,
if any, owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
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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 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 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee, in its sole
discretion, 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;
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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
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given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders of
not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be unduly prejudicial to the Holders
of Securities of such series not joining therein.
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
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the execution of every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of any undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, 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 with respect to any Security
of such series, or in the payment of any sinking fund installment with respect
to the Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the
Holders of the Securities and coupons of such series; and provided further that
in the case of any default or breach of the character specified in Section
501(4) with respect to the Securities and coupons of such series, no such
notice to Holders shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to the Securities of such series.
SECTION 602. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default:
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(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it with respect to the
Securities in good faith in accordance with the direction of the Holders
of not less than a majority in principal amount of the outstanding
Securities relating to the time, method and Place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, under this Indenture.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds in its sole
discretion for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
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(e) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 603. 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 Trust Managers may
be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any series
or any related coupons pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other paper
or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters
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as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to make
reasonable examination of the books, records and premises of the
Company, personally or by agent or attorney following reasonable notice
to the Company;
(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 willful misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(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; and
(9) for all purposes under this Indenture, subject to the
provisions of Sections 601 and 602 the Trustee shall not be deemed to
have notice or knowledge of any default or Event of Default (other than
under Section 501(1), (2) or (3)) unless a Responsible Officer assigned
to and working in the Trustee's Corporate Trust Office has actual
knowledge thereof or unless written notice of any default or Event of
Default is received by the Trustee at the Corporate Trust Office and
such notice refers to the Securities generally, the Company or this
Indenture.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 604. 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 any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities. The Trustee, any 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.
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SECTION 606. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse 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
willful misconduct; 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 willful misconduct 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 any coupons.
The provisions of this Section shall survive the termination of this Indenture.
SECTION 608. 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
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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 609. 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 610.
(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
608 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
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respect to all Securities, or (ii) subject to TIA Section 315(e), any
Holder of a Security who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the 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 610. 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, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges,
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execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 607.
(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.
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SECTION 611. 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 612. Appointment of Authenticating Agent. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be
promptly furnished to the 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 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
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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:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Trustee
By:_______________________________________,
as Authenticating Agent
By:______________________________________
Authorized Signatory
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, 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
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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 Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders
of Registered Securities of such series as of such Regular Record Date, or if
there is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the 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, (1) 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
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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 1011) on all of the Securities, according to their tenor,
and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company by supplemental
indenture, complying with Article Nine hereof, satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation and (2) immediately
after giving effect to such transaction and treating any indebtedness which
becomes an obligation of the 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 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.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of
Holders. Without the consent of any Holders of Securities or coupons, the
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
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(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and 301,
including the provisions and procedures relating to Securities
convertible into Common Shares or Preferred Shares, 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:
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(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 1011 (except as contemplated by Section 801(1) and
permitted by Section 901(1)), or reduce the amount of the principal of
an Original Issue Discount Security 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 1012, except to increase the required percentage to
effect such action or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
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SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder and
of any coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall, if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
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 1011 in respect
of principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the
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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, New York City, 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 1011) 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
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and the related coupons may be presented and surrendered for payment (including
payment of any Additional Amounts payable on Bearer Securities of that series
pursuant to Section 1011) 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 1011) shall be made at the office
of the designated agent of the Company's Paying Agent in the Borough of
Manhattan, New York City, 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 the
purpose by the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the 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 Borough of Manhattan, New York City, and initially appoints the Trustee at
its Corporate Trust Office as Paying Agent and as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency,
or so long as it is required under any other provision of the Indenture, then
the Company will maintain with respect to each such series of Securities, or as
so required, at least one exchange rate agent.
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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, on or
before 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, 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 or Additional Amounts
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any such
payment of principal (and premium, if any) or interest or Additional
Amounts; and
(3) at any time during the continuance of any such default
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The 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
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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 have 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, any Security, without interest thereon, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the 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. Limitations on Incurrence of Debt.
(a) The Company will not, and will not permit any
Subsidiary to, incur any Debt if, immediately after giving effect to the
incurrence of such additional Debt and the application of the proceeds thereof,
the aggregate principal amount of all outstanding Debt of the Company and its
Subsidiaries on a consolidated basis determined in accordance with GAAP is
greater than 60% of the sum of (without duplication) (i) the Company's Total
Assets as of the end of the calendar quarter covered in the Company's Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most
recently filed with the Commission (or, if such filing is not permitted under
the Securities Exchange Act of 1934, with the Trustee) prior to the incurrence
of such additional Debt, and (ii) the purchase price of any real estate assets
or mortgages receivable acquired, and the amount of any securities offering
proceeds received (to the extent such proceeds were not used to acquire real
estate assets or mortgages receivable or used to reduce Debt), by the Company
or any Subsidiary since the end of such calendar quarter, including those
proceeds obtained in connection with the incurrence of such additional Debt;
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(b) In addition to the limitations set forth in
subsection (a) of this Section 1004, the Company will not, and will not permit
any Subsidiary to, incur any Debt if the ratio of Consolidated Income Available
for Debt Service to the Annual Service Charge for the four consecutive fiscal
quarters most recently ended prior to the date on which such additional Debt is
to be incurred shall have been less than 1.5, on a pro forma basis after giving
effect thereto and to the application of the proceeds therefrom, and calculated
on the assumption that (i) such Debt and any other Debt incurred by the Company
and its Subsidiaries since the first day of such four-quarter period and the
application of the proceeds therefrom, including to refinance other Debt, had
occurred at the beginning of such period; (ii) the repayment or retirement of
any other Debt by the Company and its Subsidiaries since the first day of such
four-quarter period had been incurred, repaid or retired at the beginning of
such period (except that, in making such computation, the amount of Debt under
any revolving credit facility shall be computed based upon the average daily
balance of such Debt during such period); (iii) in the case of Acquired Debt or
Debt incurred in connection with any acquisition since the first day of such
four-quarter period, the related acquisition had occurred as of the first day
of such period with the appropriate adjustments with respect to such
acquisition being included in such pro forma calculation; and (iv) in the case
of any acquisition or disposition by the Company or its Subsidiaries of any
asset or group of assets since the first day of such four-quarter period,
whether by merger, stock purchase or sale, or asset purchase or sale, such
acquisition or disposition or any related repayment of Debt had occurred as of
the first day of such period with the appropriate adjustments with respect to
such acquisition or disposition being included in such pro forma calculation.
(c) In addition to the limitation set forth in
subsections (a) and (b) of this Section 1004, the Company will not, and will
not permit any Subsidiary to, incur any Debt secured by any mortgage, lien,
charge, pledge, encumbrance or security interest of any kind upon any of the
property of the Company or any Subsidiary, whether owned at the date hereof or
hereafter acquired, if, immediately after giving effect to the incurrence of
such additional Debt and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Debt of the Company and its Subsidiaries on
a consolidated basis which is secured by any mortgage, lien, charge, pledge,
encumbrance or security interest on property of the Company or any Subsidiary
is greater than 40% of the Company's Total Assets.
(d) For purposes of this Section 1004 Debt shall be
deemed to be "incurred" by the Company or a Subsidiary whenever the Company or
such Subsidiary shall create, assume, guarantee or otherwise become liable in
respect thereof.
SECTION 1005. Existence. Subject to Article Eight, the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, rights
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(charter and statutory) and franchises; provided, however, that the Company
shall not be required to preserve any right or franchise if the Board of Trust
Managers shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company.
SECTION 1006. Maintenance of Properties. The Company will
cause all of its material properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
SECTION 1007. Insurance. The Company will, and will cause
each of its Subsidiaries to, keep all of its insurable properties insured
against loss or damage at least equal to their then full insurable value with
insurers of recognized responsibility and, if such insurer has publicly rated
debt, the rating for such debt must be at least investment grade with a
nationally recognized rating agency.
SECTION 1008. Payment of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied
or imposed upon it or any Subsidiary or upon the income, profits or property of
the Company or any Subsidiary, and (2) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith.
SECTION 1009. Provision of Financial Information. Whether or
not the Company is subject to Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Company will prepare the annual reports, quarterly reports and
other documents within 15 days of each of the respective dates by which the
Company would have been required to file with the Commission pursuant to such
Section 13 or 15(d) and will (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, 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 if the Company
were subject to such Sections, (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 if the Company were subject to such
Sections and (iii) promptly upon written request and payment of the reasonable
cost of duplication and delivery, supply copies of such documents to any
prospective Holder.
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SECTION 1010. 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 1010,such compliance
shall be determined without regard to any period of grace or requirement of
notice under this Indenture.
SECTION 1011. Additional Amounts. If any Securities of a
series provide for the payment of Additional Amounts, the 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 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or 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
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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 1012. Waiver of Certain Covenants. The Company may
omit in any particular instance to comply with any term, provision or condition
set forth in Sections 1004 to 1009, inclusive, and Section 1013 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.
SECTION 1013. Maintenance of Value of Unencumbered Assets to
Unsecured Debt. The Company will at all times maintain an Unencumbered Total
Asset Value in an amount of not less than 100% of the aggregate principal
amount of all outstanding Debt of the Company and its Subsidiaries that is
unsecured.
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
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satisfactory to the Trustee), notify the Trustee in writing 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, not less than 30 days nor
more than 60 days prior to the Redemption Date, unless a shorter period is
specified by the terms of such series established pursuant to Section 301, to
each Holder of Securities to be redeemed, but failure to give such notice in
the manner herein provided to the Holder of any Security designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
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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 a charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in Section
1106, if any, will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if such
is the case,
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons maturing subsequent to the date
fixed for redemption or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price, unless security or
indemnity satisfactory to the Company, the Trustee 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
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(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 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, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the
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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
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"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,
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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 at least
one Business Day prior to 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
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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
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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
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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 1011, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article Fourteen, the 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 to 1009, inclusive, and, if specified pursuant to Section 301,
its obligations under any other covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 1004 to 1009, inclusive,
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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(8) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and any coupons appertaining thereto 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 608 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or currency unit
in which such Securities and any coupons appertaining thereto are then
specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and coupons appertaining thereto
(determined on the basis of the currency, currencies or currency unit
in which such Securities and coupons appertaining thereto are then
specified as payable at Stated Maturity) which through the scheduled
payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due
date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any
case, in an amount, sufficient, without consideration of any
reinvestment of such principal and interest, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal of (and
premium, 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
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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
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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, except, with respect to a
Conversion Event, for such currency or currency unit in effect (as nearly as
feasible) at the time of the Conversion Event.
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The 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,
subject to Section 607, 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 Borough of Manhattan, New York City, 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 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified
in Section 1501, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine
the time and
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the place in the Borough of Manhattan, New York City, 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 as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at the reconvening of any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days; at the reconvening of any meeting adjourned or
further adjourned for lack of a quorum, the persons entitled to vote 25% in the
aggregate principal amount of the Securities at the time outstanding shall
constitute a quorum for the taking of any action set forth in the notice of the
original meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given
only once not less than five days prior to the date on which the meeting is
scheduled to be reconvened.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the persons
entitled to vote a majority in aggregate principal amount of the Outstanding
Securities represented at such meeting; provided, however, that, except as
limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or
87
<PAGE> 97
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.
88
<PAGE> 98
(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.
89
<PAGE> 99
* * * * *
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
90
<PAGE> 100
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first above written.
WEINGARTEN REALTY INVESTORS
By:____________________________
Title:
Attest:
____________________________
Title:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
as Trustee
By:____________________________
Title:
Attest:
____________________________
Title:
91
<PAGE> 101
STATE OF TEXAS )
) ss:
COUNTY OF HARRIS )
On the _____ day of _________, 1995, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he/she resides at _________________, ____________ ________, that
he/she is _______________ of WEINGARTEN REALTY INVESTORS, one of the parties
described in and which executed the foregoing instrument, and that he/she
signed his/her name thereto by authority of the Board of Trust Managers.
[Notarial Seal]
_________________________
Notary Public
COMMISSION EXPIRES
STATE OF ________ )
) ss:
COUNTY OF ________ )
On the _____ day of _________, 1995, before me personally came
___________________, to me known, who, being by me duly sworn, did depose and
say that he/she resides at ____________________, that he/she is a ______
_________ of TEXAS COMMERCE BANK NATIONAL ASSOCIATION, one of the parties
described in and which executed the foregoing instrument, and that he/she
signed his/her name thereto by authority of the Board of Directors.
[Notarial Seal]
_________________________
Notary Public
COMMISSION EXPIRES
92
<PAGE> 102
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions
(financial institutions, as defined in United States Treasury Regulations
Section 2.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise WEINGARTEN REALTY INVESTORS or its agent that
such financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States
or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
A-1
<PAGE> 103
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:
A-2
<PAGE> 104
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 institution
has agreed, on its own behalf or through its agent, that we may advise
Weingarten Realty Investors or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further
effect, that financial institutions described in clause (iii) above (whether or
not also described in clause (i) or (ii)) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
A-3
<PAGE> 105
We further certify that (i) we are not making available herewith
for exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection
with certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: _____________ 19__
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust
Company of New York,
Brussels Office,] as
Operator of the
Euroclear System
[Cedel S.A.]
By:_____________________
A-4
<PAGE> 1
Exhibit (4)(b)
_____________________________________________________
WEINGARTEN REALTY INVESTORS
TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
Trustee
__________________________
Indenture
Dated as of [___________], 1995
_________________________
Subordinated Debt Securities
_____________________________________________________
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Acquired Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Annual Service Charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bankruptcy Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Trust Managers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Capital Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Common Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request and Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Consolidated Income Available for Debt Service . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Conversion Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Disqualified Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
European Communities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
European Monetary System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Exchange Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Funds from Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Indexed Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Preferred Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Repayment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Security Register and Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Significant Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Total Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Trust Indenture Act or TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Trust Managers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Undepreciated Real Estate Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Unencumbered Total Asset Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 105. Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 107. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 108. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 111. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 112. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 113. Immunity of Shareholders, Trust Managers,
Officers and Agents of the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
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ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 203. Securities Issuable in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 402. Application of Trust Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, Interest and
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
</TABLE>
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SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 512. Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 514. Waiver of Usury, Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 515. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 602. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 604. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 608. Corporate Trustee Required; Eligibility;
Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 609. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 610. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 611. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 612. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 703. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 704. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 802. Rights and Duties of Successor
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 803. Officers' Certificate and Opinion of
Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
</TABLE>
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any,
Interest and Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1003. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1004. Limitations on Incurrence of Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1005. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1006. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1007. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1008. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1009. Provision of Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1010. Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1011. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1012. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1013. Maintenance of Value of Unencumbered
Assets to Unsecured Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
</TABLE>
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1303. Exercise of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's
Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 1402. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 1502. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 1503. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 1504. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
SECTION 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 1506. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
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ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 1602. Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 1603. Default on Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 1604. Acceleration of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 1605. When Distribution Must Be Paid Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 1606. Notice by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 1607. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 1608. Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 1609. Subordination May Not Be Impaired by
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 1610. Distribution or Notice to
Representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
SECTION 1611. Rights of Trustee and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
</TABLE>
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
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<PAGE> 9
WEINGARTEN REALTY INVESTORS
Reconciliation and tie between Trust Indenture Act of 1939 (the "1939
Act") and Indenture, dated as of _________, 1995
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C>
Section 310(a)(1) ............................. 607
(a)(2) ............................. 607
(b) ................................ 607, 608
Section 312(a) ................................ 704
Section 312(c) ................................ 701
Section 313(a) ................................ 702
(c) ................................ 702
Section 314(a) ................................ 703
(a)(4) ............................. 1010
(c)(1) ............................. 102
(c)(2) ............................. 102
(e) ................................ 102
Section 315(b) ................................ 601
Section 316(a) (last sentence) ................ 101 ("Outstanding")
(a)(1)(A) .......................... 512
(a)(1)(B) .......................... 513
(b) ................................ 508
Section 317(a)(1) ............................. 503
(a)(2) ............................. 504
Section 318(a) ................................ 111
(c) ................................ 111
</TABLE>
- -------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939
Act, which provides that the provisions of Sections 310 to and including 317 of
the 1939 Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
viii
<PAGE> 10
INDENTURE, dated as of __________, 1995, between
WEINGARTEN REALTY INVESTORS, a real estate investment trust organized under the
laws of the state of Texas (hereinafter called the "Company"), having its
principal office at 2600 Citadel Plaza Drive, Houston, Texas 77008 and TEXAS
COMMERCE BANK NATIONAL ASSOCIATION as Trustee hereunder (hereinafter called the
"Trustee"), having its principal office at 600 Travis, Houston, Texas 77002.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to
time for its lawful purposes subordinated debt securities (hereinafter called
the "Securities") evidencing its unsecured and subordinated indebtedness, and
has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of the Securities, 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 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 ("Holders"), 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
1
<PAGE> 11
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.
"Acquired Debt" means Debt of a Person (i) existing at the time
such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Debt incurred
in connection with, or in contemplation of, such Person becoming a Subsidiary
or such acquisition. Acquired Debt shall be deemed to be incurred on the date
of the related acquisition of assets from any Person or the date the acquired
Person becomes a Subsidiary.
"Act", 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.
"Annual Service Charge" as of any date means the maximum amount
which is payable in any period for interest on, and original issue discount of,
Debt of the Company and its Subsidiaries and the amount of dividends which are
payable in respect of any Disqualified Stock.
"Authenticating Agent" means any authenticating agent appointed
by the Trustee pursuant to Section 611.
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"Authorized Newspaper" means a newspaper, printed in the
English language or in an official language of the country of publication,
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community of each
such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or in
different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to
Section 201 which is payable to bearer.
"Board of Trust Managers" means the board of Trust Managers 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 of Trust Managers and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in that Place
of Payment or particular location are authorized or required by law, regulation
or executive order to close.
"Capital Shares" means, with respect to any Person, any capital
shares (including preferred shares), interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for capital shares),
warrants or options to purchase any thereof.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A.,
or its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the 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
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to it under the Trust Indenture Act, then the body performing such duties on
such date.
"Common Depositary" has the meaning specified in Section 304(b).
"Common Shares" means, with respect to any Person, Capital
Shares issued by such Person other than Preferred Shares.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by one Trust Manager
and the Company's Chairman of the Board, its Chief Executive Officer, its
President or a Vice President, its Treasurer, an Assistant Treasurer, its
Controller, nan Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated Income Available for Debt Service" for any period
means Funds from Operations of the Company and its Subsidiaries plus amounts
which have been deducted for interest on Debt of the Company and its
Subsidiaries.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU
both within the European Monetary System and for the settlement of transactions
by public institutions of or within the European Communities or (iii) any
currency unit (or composite currency) other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at 600
Travis, 8th Floor, Houston, Texas 77002. For purposes of Sections 3.01 and
10.02 hereof, the Corporate Trust Office shall also include its office, which
at the date hereof is located at 1900 Pacific, 16th Floor, Dallas, Texas 75201
and the office of the Turstee's agent located on the date of execution of the
Indenture at 80 Broad Street, 4th Floor, New York, New York 10004.
"corporation" includes corporations, associations, partnerships,
companies and business trusts.
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"coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of the Company or any Subsidiary means any indebtedness
of the Company, or any Subsidiary, other than contingent liabilities (except to
the extent set forth in (iii) below, in respect of (without duplication) (i)
borrowed money or evidenced by bonds, notes, debentures or similar instruments,
(ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or
any security interest existing on property owned by the Company or any
Subsidiary, (iii) the reimbursement obligations, contingent or otherwise, in
connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations or obligations under any title
retention agreement, (iv) the principal amount of all obligations of the
Company or any Subsidiary with respect to redemption, repayment or other
repurchase of any Disqualified Stock or (v) 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 to
the extent, in the case of items of indebtedness under (i) through (iii) above,
that any such items (other than letters of credit) would appear as a liability
on the Company's consolidated balance sheet in accordance with GAAP, but does
not include any obligation of the Company or any Subsidiary to be liable for,
or to pay, as obligor, guarantor or otherwise, Debt of another Person (other
than the Company or any Subsidiary) unless and until the Company or such
Subsidiary shall become directly liable in respect thereof).
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" means, with respect to any Person, any
Capital Shares of such Person which by the terms of such Capital Shares (or by
the terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise (i)
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, (ii) is convertible into or exchangeable or exercisable for debt or
Disqualified Stock or (iii) is redeemable at the option of the holder thereof,
in whole or in part, in each case on or prior to the Stated Maturity of the
Securities.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts.
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"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community,
the European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Date" has the meaning specified in Section 304(b).
"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 net income plus
depreciation, amortization and extraordinary charges, excluding gains and
losses on sales of iesproperties and securities.
"GAAP" means generally accepted accounting principles, as 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
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receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person
in whose name a Security is registered in the Security Register and, in the
case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of the or those particular series of Securities for which such Person is
Trustee established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section 1011,
includes such Additional Amounts.
"Interest Payment Date", 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,
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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 a Trust
Manager and an executive officer 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 acceptable 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;
(v) Securities converted into Common Shares or Preferred
Shares pursuant to or in accordance with this Indenture if the
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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, unincor-porated
organization or government or any agency or political subdivision thereof.
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"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.
"Preferred Shares" means, with respect to any Person, Capital
Shares issued by such Person that are entitled to a preference or priority over
any other capital shares issued by such Person upon any distribution of such
Person's assets, whether by dividend or upon liquidation.
"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 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.
"Representative" means the indenture trustee or other trustee,
agent or representative for an issue of Senior Debt.
"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
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title "vice president"), the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any corporate trust officer or the controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter
is referred because of such officer's knowledge and familiarity with the
particular subject.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, however, that, if
at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such Person
is Trustee shall have the meaning stated in the first recital of this Indenture
and shall more particularly mean Securities authenticated and delivered under
this Indenture, exclusive, however, of Securities of any series as to which
such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means the principal of and interest on, or
substantially similar payments to be made by the Company in respect of, the
following, whether outstanding at the date of execution of this Indenture or
thereafter incurred, created or assumed: (a) indebtedness of the Company for
money borrowed or represented by purchase-money obligations, (b) indebtedness
of the Company evidenced by notes, debentures, or bonds, or other securities
issued under the provisions of an indenture, fiscal agency agreement or other
instrument, (c) obligations of the Company as lessee under leases of property
either made as part of any sale and lease-back transaction to which the Company
is a party or otherwise, (d) indebtedness of partnerships and joint ventures
which is included in the Company's consolidated financial statements, (e)
indebtedness, obligations and liabilities of others in respect of which the
Company is liable contingently or otherwise to pay or advance money or property
or as guarantor, endorser or otherwise or which the Company has agreed to
purchase or otherwise acquire, and (f) any binding commitment of the Company to
fund any real estate investment or to fund any investment in any entity making
such real estate investment; but excluding, however, (1) any such indebtedness,
obligation or liability referred to in clauses (a) through (f) above as to
which, in the instrument creating or evidencing the same or pursuant to which
the same is outstanding, it is provided that such indebtedness, obligation or
liability is not superior in right of payment to the Securities, or ranks pari
passu with the Securities, (2) any such indebtedness, obligation or liability
which is subordinated to indebtedness of the Company to substantially the same
extent as or to a greater extent than the Securities are subordinated and (3)
the Securities. As used
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in the preceding sentence the term "purchase-money obligations" shall mean
indebtedness or obligations evidenced by a note, debenture, bond or other
instrument (whether or not secured by any lien or other security interest but
excluding indebtedness or obligations for which recourse is limited to the
property purchased) issued or assumed as all or a part of the consideration for
the acquisition of property, whether by purchase, merger, consolidation or
otherwise, but shall not include any trade accounts payable. A distribution
may consist of cash, securities or other property.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated under the Securities Act of 1933) 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.
"Total Assets" as of any date means the sum of (i) the Company's
Undepreciated Real Estate Assets and (ii) all other assets of the Company
determined in accordance with GAAP (but excluding goodwill and unamortized debt
costs).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trust Managers" means those individuals comprising the Board of
Trust Managers of the Company.
"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
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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.
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Company
and its Subsidiaries on such date, before depreciation and amortization
determined on a consolidated basis in accordance with GAAP.
"Unencumbered Total Asset Value" means as of any date the sum of
the Company's Total Assets which are unencumbered by any mortgage, lien,
charge, pledge or security interest.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the
time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the 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
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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 1010) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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.
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Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders. (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. 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
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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.
In the absence of any such record date fixed by the Company,
regardless as to whether a solicitation of the Holders is occurring on behalf
of the Company or any Holder, the Trustee may, at its option, fix in advance a
record date for the determination of such Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Trustee shall have no obligation to do so. Any such record date
shall be a date not more
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than 30 days prior to the first solicitation of Holders generally in connection
therewith no later than the date of such solicitation.
(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 600 Travis, Houston, Texas
77002.
(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 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.
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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 New York City 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.
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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 State of New York. This Indenture is subject to the provisions of the TIA
that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date,
Stated Maturity or Maturity of any Security shall not be a Business Day at any
Place of Payment or at the principal Corporate Trust Office of the Trustee,
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) 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. Immunity of Shareholders, Trust Managers, Officers
and Agents of the Company. In accordance with Article 15 of the Amended and
Restated Declaration of Trust of the Company ("Declaration of Trust"), the
Trustee recognizes and agrees that the obligations of the Company under the
Indenture and the Securities and all documents delivered in the name of the
Company in connection herewith and therewith do not and shall not constitute
personal obligations of the Trust Managers, officers, employees, agents or
shareholders of the
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Company or any of them, and shall not involve any claim against or personal
liability on the part of any of them, and that all persons including the
Trustee shall look solely to the assets of the Company for the payment of any
claim thereunder or for the performance thereof and shall not seek recourse
against such Trust Managers, officers, employees, agents or shareholders of the
Company or any of them or any of their personal assets for such satisfaction.
The performance of the obligations of the Company under the Indenture and the
Securities and all documents delivered in the name of the Company in connection
therewith shall not be deemed a waiver of any rights or powers of the Company,
Trust Managers or shareholders under the Declaration of Trust.
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 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:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Trustee
By ______________________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities
of or within a series are issuable in global form, as specified as contemplated
by Section 301, then, notwithstanding clause (8) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
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
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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 Sections 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
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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 Borough of Manhattan, New York City, 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, 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, and in any integral multiple thereof, 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;
(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
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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) or
interest or 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 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 so
payable;
(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 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
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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) whether and under what circumstances the Company will
pay Additional Amounts as contemplated by Section 1011 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);
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(22) the obligation, if any, of the Company to permit the
conversion of the Securities of such series into the Company's Common
Shares or Preferred Shares, 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); and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to
any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy
of an appropriate record of such action(s) shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the terms of
the Securities of such series.
SECTION 302. Denominations. The Securities of each series
shall be issuable in such denominations as shall be specified as contemplated
by Section 301. With respect to Securities of any series denominated in
Dollars, in the absence of any such provisions with respect to the Securities
of any series, the 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, and in any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf
of the Company by a Trust Manager and its Chairman, its Chief Executive
Officer, its President, its Treasurer or one of its Vice Presidents and
attested by its Secretary or one of its Assistant Secretaries. The signature
of any of these individuals on the Securities and coupons may be manual or
facsimile signatures of the
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present or any future such authorized officer and trustee 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 to Euroclear
or Cedel, as the case may be, in the form set forth in Exhibit A-1 to this
Indenture or such other certificate as may be specified with respect to any
series of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and
this Indenture. 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 or the Authenticating Agent shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled.
If all of the Securities of any series are not to be issued at
one time and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such 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
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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
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issuances, shall be delivered at or before the time of issuance of the first
Security of such series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears
on such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security 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
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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 The
Depository Trust Company. If any such temporary Security is issued in global
form, then such temporary global Security shall, unless otherwise provided
therein, be delivered to the London office of a 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, or its agent, 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
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<PAGE> 40
date and signed by CEDEL as to the portion of such temporary global Security
held for its account then to be exchanged, each in the form set forth in
Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security
only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may
be established pursuant to Section 301), dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise
specified in such temporary global Security, any such exchange shall be made
free of charge to the beneficial owners of such temporary global Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like unless such Person takes
delivery of such definitive Securities in person at the offices of Euroclear or
CEDEL. Definitive Securities in bearer form to be delivered in exchange for
any portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
and CEDEL on such Interest Payment Date upon delivery by Euroclear and CEDEL to
the Trustee of a certificate or certificates in the form set forth in Exhibit
A-2 to this Indenture (or in such other forms as may be established pursuant to
Section 301), for credit without further interest on or after such Interest
Payment Date to the respective accounts of Persons who are the beneficial
owners of such temporary global Security on such Interest Payment Date and who
have each delivered to Euroclear or CEDEL, as the case may be, a 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
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contained, the certifications made pursuant to this paragraph shall satisfy the
certification requirements of the preceding two paragraphs of this Section
304(b) and of the third paragraph of Section 303 of this Indenture and the
interests of the Persons who are the beneficial owners of the temporary global
Security with respect to which such certification was made will be exchanged
for definitive Securities of the same series and of like tenor on the Exchange
Date or the date of certification if such date occurs after the Exchange Date,
without further act or deed by such beneficial owners. Except as otherwise
provided in this paragraph, no payments of principal or interest owing with
respect to a beneficial interest in a temporary global Security will be made
unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the 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 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
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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, in their sole
discretion, 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.
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Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
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 The Depository Trust Company ("DTC"), then, unless
the terms of such global Security expressly permit such global Security to be
exchanged in whole or in part for definitive Securities, a global Security may
be transferred, in whole but not in part, only to a nominee of DTC, or by a
nominee of DTC to DTC, or to a successor to DTC for such global Security
selected or approved by the 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 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 not 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
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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 the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but will
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, only to the Person to whom interest in respect of such portion of
such permanent global Security is payable in accordance with the provisions of
this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the 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 Sections 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
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notice of redemption and (B) if such Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities
and there is no publication, the mailing of the relevant notice of redemption,
or (ii) to register the transfer of or exchange any Registered Security so
selected for redemption in whole or in part, except, in the case of any
Registered Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security
of that series and like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment
at the option of the Holder, except the portion, if any, of such Security not
to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon appertaining to
it is surrendered to the Trustee or the 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 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
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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
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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 30
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
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proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to
the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 15 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
Company may, in its discretion, direct the Trustee to publish 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 at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after
the close of business at such office or agency on any Special Record
Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to
the Holder of such coupon when due in accordance with the provisions of
this Indenture.
(2) The Company may make payment of any Defaulted Interest
on the 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.
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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 be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
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 be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
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
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for any such purpose shall be promptly cancelled by it; provided, however,
where the Place of Payment is located outside of the United States, the Paying
Agent at such Place of Payment may cancel the Securities surrendered to it for
such purposes prior to delivering the Securities to the Trustee. 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 1011), 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
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required or has been waived as provided in Section 305, (ii)
Securities and coupons of such series which have beendestroyed,
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 trust funds in trust for the purpose an amount in the
currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series
are payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not theretofore
delivered to the Trustee for cancellation, for principal (and
premium, 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.
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Notwithstanding the satisfaction and discharge of this Indenture, 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.
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, 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
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Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company (including
obligations under leases required to be capitalized on the balance sheet
of the lessee under generally accepted accounting principles, but not
including any indebtedness or obligations for which recourse is limited
to property purchased) in an aggregate principal amount in excess of
$10,000,000, or under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (including such leases
but not including such indebtedness or obligations for which recourse is
limited to property purchased) in an aggregate principal amount in
excess of $10,000,000 by the Company, whether such indebtedness now
exists or shall hereafter be created, which default shall have resulted
in such indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable or such
obligations being accelerated, without such acceleration having been
rescinded or annulled; 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,
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(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all of either
of their 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) any other Event of Default provided with respect to
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S.
Code or any similar Federal or State law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of 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; provided, however, that if such Event of Default
shall occur pursuant to Section 501(6) or Section 501(7) hereof, such
acceleration shall be automatic and shall occur without notice.
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 or 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):
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(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, 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, 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
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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, premium, if any, or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series,
of principal (and premium, if any) and interest and Additional Amounts,
if any, owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
of a Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest and any Additional Amounts, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium, 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
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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 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee, in its sole
discretion, 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
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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,
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(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be unduly prejudicial to the Holders
of Securities of such series not joining therein.
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 any undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit having due regard to the merits and good faith
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of the claims or defenses made by such party litigant; but the pro-visions of
this Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, 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 with respect to any Security
of such series, or in the payment of any sinking fund installment with respect
to the Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the
Holders of the Securities and coupons of such series; and provided further that
in the case of any default or breach of the character specified in Section
501(4) with respect to the Securities and coupons of such series, no such
notice to Holders shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to the Securities of such series.
SECTION 602. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such
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certificates or opinions which by any provisions hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the
accuracy of mathematical calculations or other facts stated therein).
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it with respect to the
Securities in good faith in accordance with the direction of the Holders
of not less than a majority in principal amount of the outstanding
Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, under this Indenture.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds in its sole
discretion for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions
of this Section.
SECTION 603. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
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(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 Trust Managers may
be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any series
or any related coupons pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other paper
or document, 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 make reasonable examination of
the books, records and premises of the Company, personally or by agent
or attorney following reasonable notice to the Company;
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(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 willful misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(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; and
(9) for all purposes under this Indenture, subject to the
provisions of Sections 601 and 602 the Trustee shall not be deemed to
have notice or knowledge of any default or Event of Default (other than
under Section 501(1), (2) or (3)) unless a Responsible Officer assigned
to and working in the Trustee's Corporate Trust Office has actual
knowledge thereof or unless written notice of any default or Event of
Default is received by the Trustee at the Corporate Trust Office and
such notice refers to the Securities generally, the Company or this
Indenture.
Except during the continuance of an Event of Default, the
Trustee undertakes to perform only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 604. 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 any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities. The Trustee, any 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 606. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability
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for interest on any money received by it hereunder except as otherwise agreed
with the Company.
SECTION 607. Compensation and Reimbursement. The Company
agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse 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 any coupons.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 608. 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
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$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 609. 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 610.
(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
608 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,
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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 cause 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 610. 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
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successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 607.
(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,
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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 611. 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 612. Appointment of Authenticating Agent. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be
promptly furnished to the 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 shall at all times be a bank or trust company or
corporation organized and doing business and in good standing under the laws of
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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
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endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Trustee
By:_____________________________________,
as Authenticating Agent
By:_____________________________________
Authorized Signatory
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
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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, 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 Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders
of Registered Securities of such series as of such Regular Record Date, or if
there is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the 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.
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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, (1) 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 1011) on all of the Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Company by
supplemental indenture, complying with Article Nine hereof, satisfactory to the
Trustee, executed and delivered to the Trustee by such corporation and (2)
immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the 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.
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In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel.
Any consolidation, merger, sale, lease or conveyance permitted under Section
801 is also subject to the condition that the Trustee receive an Officers'
Certificate and an Opinion of Counsel to the effect that any such
consolidation, merger, sale, lease or conveyance, and the assumption by any
successor 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
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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, 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
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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 1011 (except as contemplated by Section 801(1) and
permitted by Section 901(1)), or reduce the amount of the principal of
an Original Issue Discount Security 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
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(3) modify any of the provisions of this Section, Section
513 or Section 1012, except to increase the required percentage to
effect such action or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
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
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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 1011 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, New York City, 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
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United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Securities of that series pursuant to Section
1011) 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 1011)
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 1011) shall be made at the office
of the designated agent of the Company's Paying Agent in the Borough of
Manhattan, New York City, 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 the
purpose by the Company in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
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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 designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in 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 Borough of Manhattan, The City of New York, and initially appoints the
Trustee at its Corporate Trust Office as Paying Agent in such city and as its
agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency,
or so long as it is required under any other provision of the Indenture, then
the 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, on or
before 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, 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,
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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 or Additional Amounts
in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any such
payment of principal (and premium, if any) or interest or Additional
Amounts; and
(3) at any time during the continuance of any such default
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The 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 have 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, any Security, without interest thereon, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however,
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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. Limitations on Incurrence of Debt.
(a) The Company will not, and will not permit any
Subsidiary to, incur any Debt if, immediately after giving effect to the
incurrence of such additional Debt and the application of the proceeds thereof,
the aggregate principal amount of all outstanding Debt of the Company and its
Subsidiaries on a consolidated basis determined in accordance with GAAP is
greater than 60% of the sum of (without duplication) (i) the Company's Total
Assets as of the end of the calendar quarter covered in the Company's Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most
recently filed with the Commission (or, if such filing is not permitted under
the Securities Exchange Act of 1934, with the Trustee) prior to the incurrence
of such additional Debt, and (ii) the purchase price of any real estate assets
or mortgages receivable acquired, and the amount of any securities offering
proceeds received (to the extent such proceeds were not used to acquire real
estate assets or mortgages receivable or used to reduce Debt), by the Company
or any Subsidiary since the end of such calendar quarter, including those
proceeds obtained in connection with the incurrence of such additional Debt;
(b) In addition to the limitations set forth in
subsection (a) of this Section 1004, the Company will not, and will not permit
any Subsidiary to, incur any Debt if the ratio of Consolidated Income Available
for Debt Service to the Annual Service Charge for the four consecutive fiscal
quarters most recently ended prior to the date on which such additional Debt is
to be incurred shall have been less than 1.5, on a pro forma basis after giving
effect thereto and to the application of the proceeds therefrom, and calculated
on the assumption that (i) such Debt and any other Debt incurred by the Company
and its Subsidiaries since the first day of such four-quarter period and the
application of the proceeds therefrom, including to refinance other Debt, had
occurred at the beginning of such period; (ii) the repayment or retirement of
any other Debt by the Company and its Subsidiaries since the first day of such
four- quarter period had been incurred, repaid or retired at the beginning of
such period (except that, in making such computation, the amount of Debt under
any revolving credit facility shall be computed based upon the average daily
balance of such Debt during such period); (iii) in the case of Acquired Debt or
Debt incurred in connection with any acquisition since the first day of such
four-quarter period, the related acquisition had occurred as of the first day
of such period with the
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appropriate adjustments with respect to such acquisition being included in such
pro forma calculation; and (iv) in the case of any acquisition or disposition
by the Company or its Subsidiaries of any asset or group of assets since the
first day of such four-quarter period, whether by merger, stock purchase or
sale, or asset purchase or sale, such acquisition or disposition or any related
repayment of Debt had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition or disposition being
included in such pro forma calculation.
(c) In addition to the limitation set forth in
subsections (a) and (b) of this Section 1004, the Company will not, and will
not permit any Subsidiary to, incur any Debt secured by any mortgage, lien,
charge, pledge, encumbrance or security interest of any kind upon any of the
property of the Company or any Subsidiary, whether owned at the date hereof or
hereafter acquired, if, immediately after giving effect to the incurrence of
such additional Debt and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Debt of the Company and its Subsidiaries on
a consolidated basis which is secured by any mortgage, lien, charge, pledge,
encumbrance or security interest on property of the Company or any Subsidiary
is greater than 40% of the Company's Total Assets.
(d) For purposes of this Section 1004 Debt shall be
deemed to be "incurred" by the Company or a Subsidiary whenever the Company or
such Subsidiary shall create, assume, guarantee or otherwise become liable in
respect thereof.
SECTION 1005. Existence. Subject to Article Eight, the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Company shall not be
required to preserve any right or franchise if the Board of Trust Managers
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company.
SECTION 1006. Maintenance of Properties. The Company will
cause all of its material properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
SECTION 1007. Insurance. The Company will, and will cause
each of its Subsidiaries to, keep all of its insurable properties insured
against loss or damage at least equal to their then full
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insurable value with insurers of recognized responsibility and, if such insurer
has publicly rated debt, the rating for such debt must be at least investment
grade with a nationally recognized rating agency.
SECTION 1008. Payment of Taxes and Other Claims. The Company
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied
or imposed upon it or any Subsidiary or upon the income, profits or property of
the Company or any Subsidiary, and (2) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith.
SECTION 1009. Provision of Financial Information. Whether or
not the Company is subject to Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Company will prepare the annual reports, quarterly reports and
other documents within 15 days of each of the respective dates by which the
Company would have been required to file with the Commission pursuant to such
Section 13 or 15(d) and would (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, 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 if the Company
were subject to such Sections, (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 if the Company were subject to such
Sections and (iii) promptly upon written request and payment of the reasonable
cost of duplication and delivery, supply copies of such documents to any
prospective Holder.
SECTION 1010. Statement as to Compliance. The 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 1010, such compliance
shall be determined without regard to any period of grace or requirement of
notice under this Indenture.
SECTION 1011. Additional Amounts. If any Securities of a
series provide for the payment of Additional Amounts, the 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
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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 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or 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
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furnished pursuant to this Section or in reliance on the Company's not
furnishing such an Officers' Certificate.
SECTION 1012. Waiver of Certain Covenants. The Company may
omit in any particular instance to comply with any term, provision or condition
set forth in Sections 1004 to 1009, inclusive, and Section 1013 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.
SECTION 1013. Maintenance of Value of Unencumbered Assets to
Unsecured Debt. The Company will at all times maintain an Unencumbered Total
Asset Value in an amount of not less than 100% of the aggregate principal
amount of all outstanding Debt of the Company and its Subsidiaries that is
unsecured.
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 in writing 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
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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, not less than 30 days nor
more than 60 days prior to the Redemption Date, unless a shorter period is
specified by the terms of such series established pursuant to Section 301, to
each Holder of Securities to be redeemed, but failure to give such notice in
the manner herein provided to the Holder of any Security designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any, 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,
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(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the holder
will receive, without a charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in Section
1106, if any, will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any, 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 date
fixed for redemption or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price, unless security or
indemnity satisfactory to the Company, the Trustee 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.
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SECTION 1105. Deposit of Redemption Price. 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, 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
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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
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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.
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ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities, if any,
and (except as otherwise specified by the terms of such series established
pursuant to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at a price equal to the principal amount thereof, together with
interest, if any, thereon accrued to the Repayment Date specified in or
pursuant to the terms of such Securities. The Company covenants that at least
one Business Day prior to 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
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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
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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
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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 1011, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article Fourteen, the 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 to 1009, inclusive, and, if specified pursuant to Section 301,
its obligations under any other covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and
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such Securities and any coupons appertaining thereto shall thereafter be deemed
to be not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Sections 1004 to 1009, inclusive, or such other covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the 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(8) or otherwise, as the case may be,
but, except as specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto 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 608 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or currency unit
in which such Securities and any coupons appertaining thereto are then
specified as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and coupons appertaining thereto
(determined on the basis of the currency, currencies or currency unit
in which such Securities and coupons appertaining thereto are then
specified as payable at Stated Maturity) which through the scheduled
payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due
date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any
case, in an amount, sufficient, without consideration of any
reinvestment of such principal and interest, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i)
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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
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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
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becomes due out of the proceeds yielded by converting (from time to time as
specified below in the case of any such election) the amount or other property
deposited in respect of such Security into the currency or currency unit in
which such Security becomes payable as a result of such election or Conversion
Event based on the applicable market exchange rate for such currency or
currency unit in effect on the second Business Day prior to each payment date,
except, with respect to a Conversion Event, for such currency or currency unit
in effect (as nearly as feasible) at the time of the Conversion Event.
The 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,
subject to Section 607, 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 Borough of Manhattan, New York City, 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.
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<PAGE> 100
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified
in Section 1501, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the 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 Borough of Manhattan, New York City, 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 as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at the reconvening of any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days; at the reconvening of any meeting adjourned or
further adjourned for lack of a quorum, the persons entitled to vote 25% in
aggregate principal amount of the Securities at the time outstanding shall
constitute a quorum for the taking of any action set forth in the notice of the
original meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in
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Section 1502(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the persons
entitled to vote a majority in aggregate principal amount of the Outstanding
Securities represented at such meeting; provided, however, that, except as
limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of
such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made,
given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (a) Notwithstanding any provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in regard to
proof of the holding of Securities of such series and of the
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<PAGE> 102
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
93
<PAGE> 103
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.
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Agreement to Subordinate. The Company
agrees, and each Holder by accepting a Security agrees, that the indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent
and in the manner provided in this Article, to the prior payment in full of all
Senior Debt and that the subordination is for the benefit of the holders of
Senior Debt.
SECTION 1602. Liquidation; Dissolution; Bankruptcy. Upon any
distribution to creditors of the Company in a liquidation or dissolution of the
Company or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its property:
(1) holders of Senior Debt shall be entitled to receive
payment in full in cash of the principal of and interest (including
interest accruing after the commencement of any such proceeding) to
the date of payment on the Senior Debt before Holders shall be
entitled to receive any payment of principal of or interest on
Securities;
(2) until the Senior Debt is paid in full in cash, any
distribution to which Holders would be entitled but for this Article
shall be made to holders of Senior Debt as their interests may appear,
except that Holders may receive securities that are subordinated to
Senior Debt to at least the same extent as the Securities; and
(3) the Trustee is entitled to rely upon an order or
decree of a court of competent jurisdiction or a certificate of a
94
<PAGE> 104
bankruptcy trustee or other similar official for the purpose of
ascertaining the persons entitled to participate in such distribution,
the holders of Senior Debt and other Company debt, the amount thereof
or payable thereon and all other pertinent facts relating to the
Trustee's obligations under this Article Sixteen.
SECTION 1603. Default on Senior Debt. The Company may not pay
principal of or interest on the Securities and may not acquire any Securities
for cash or property other than capital shares of the Company if:
(1) a default on Senior Debt occurs and is continuing
that permits holders of such Senior Debt to accelerate its maturity,
and
(2) the default is the subject of judicial proceedings or
the Company receives a notice of the default from a person who may
give it pursuant to Section 1611. If the Company receives any such
notice, a similar notice received within nine months thereafter
relating to the same default on the same issue of Senior Debt shall
not be effective for purposes of this Section.
The Company may resume payments on the Securities and may acquire them
when:
(a) the default is cured or waived, or
(b) 120 days pass after the notice is given if the
default is not the subject of judicial proceedings,
if this Article otherwise permits the payment or acquisition at that time.
SECTION 1604. Acceleration of Securities. If payment of the
Securities is accelerated because of an Event of Default, the Company shall
promptly notify holders of Senior Debt of the acceleration. The Company may
pay the Securities when 120 days pass after the acceleration occurs if this
Article permits the payment at that time.
SECTION 1605. When Distribution Must Be Paid Over. If a
distribution is made to Holders that because of this Article should not have
been made to them, the Holders who receive the distribution shall hold it in
trust for holders of Senior Debt and pay it over to them as their interests may
appear.
SECTION 1606. Notice by Company. The Company shall promptly
notify the Trustee and any Paying Agent of any facts known to the Company that
would cause a payment of principal of or interest on Securities to violate this
Article.
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<PAGE> 105
SECTION 1607. Subrogation. After all Senior Debt is paid in
full and until the Securities are paid in full, Holders shall be subrogated to
the rights of holders of Senior Debt to receive distributions applicable to
Senior Debt to the extent that distributions otherwise payable to the Holders
have been applied to the payment of Senior Debt. A distribution made under
this Article to holders of Senior Debt which otherwise would have been made to
Holders is not, as between the Company and Holders, a payment by the Company on
Senior Debt.
SECTION 1608. Relative Rights. This Article defines the
relative rights of Holders and holders of Senior Debt. Nothing in this
Indenture shall:
(1) impair, as between the Company and Holders, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Securities in accordance with their
terms;
(2) affect the relative rights of Holders and creditors
of the Company other than holders of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon an Event of Default, subject to the rights of
holders of Senior Debt to receive distributions otherwise payable to
Holders.
If the Company fails because of this Article to pay principal of or
interest on a Security on the due date, the failure is still a default.
SECTION 1609. Subordination May Not Be Impaired by Company. No
right of any holder of Senior Debt to enforce the subordination of the
indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
SECTION 1610. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Debt, the distribution may be made and the notice given to their
Representative.
SECTION 1611. Rights of Trustee and Paying Agent. The
Trustee or any Paying Agent may continue to make payments on the Securities
until it receives written notice of facts that would cause a payment of
principal of or interest on the Securities to violate this Article. Only the
Company, a Representative or a holder of an issue of Senior Debt that has no
Representative may give the written notice.
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<PAGE> 106
The Trustee has no fiduciary duty to the holders of Senior Debt other
than as created under this Indenture. The Trustee in its individual or any
other capacity may hold Senior Debt with the same rights it would have if it
were not Trustee.
The Company's obligation to pay, and the Company's payment of, the
Trustee's fees pursuant to Section 606 are excluded from the operation of this
Article Sixteen.
* * * * *
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
97
<PAGE> 107
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed all as of the day and year first above written.
WEINGARTEN REALTY INVESTORS
By:____________________________
Title:
Attest:
____________________________
Title:
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
as Trustee
By:____________________________
Title:
Attest:
____________________________
Title:
98
<PAGE> 108
STATE OF TEXAS )
) ss:
COUNTY OF HARRIS )
On the _____ day of __________ 1995, before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he/she resides at ________________,_______________, that he/she is
___________ of WEINGARTEN REALTY INVESTORS, one of the parties described in and
which executed the foregoing instrument, and that he/she signed his/her name
thereto by authority of the Board of Trust Managers.
[Notarial Seal]
____________________________
Notary Public
COMMISSION EXPIRES
STATE OF NORTH CAROLINA )
) ss:
COUNTY OF ________ )
On the _____ day of __________ 1995, before me personally came
________________, to me known, who, being by me duly sworn, did depose and say
that he/she resides at ________________________, that he/she is a
__________________ of TEXAS COMMERCE BANK NATIONAL ASSOCIATION, one of the
parties described in and which executed the foregoing instrument, and that
he/she signed his/her name thereto by authority of the Board of Directors.
[Notarial Seal]
___________________________
Notary Public
COMMISSION EXPIRES
99
<PAGE> 109
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions
(financial institutions, as defined in United States Treasury Regulations
Section 2.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise Weingarten Realty Investors or its agent that
such financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States
or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
A-1
<PAGE> 110
"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 Signator)
Name:
Title:
A-2
<PAGE> 111
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 institution
has agreed, on its own behalf or through its agent, that we may advise
Weingarten Realty Investors or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) is owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further
effect, that financial institutions described in clause (iii) above (whether or
not also described in clause (i) or (ii)) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
A-3
<PAGE> 112
We further certify that (i) we are not making available herewith
for exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection
with certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ______________________________ 19__
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust
Company of New York,
Brussels Office,] as
Operator of the
Euroclear System
[Cedel S.A.]
By:__________________________
A-4
<PAGE> 1
Exhibit (4)(c)
[Form of Fixed Rate Redeemable or Non-Redeemable
Senior Security]
If the Holder of this Note (as indicated below) is The
Depository Trust Company (the "Depository") or a nominee of the Depository,
this Note is a Global Security and the following two legends apply:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (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.
[Face of Security]
WEINGARTEN REALTY INVESTORS
___% Note due _____
No. _____________ $____________
WEINGARTEN REALTY INVESTORS, a Texas real estate investment
trust (herein referred to as the "Company", which term includes any successor
corporation under the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to ______________________________________ or
registered assigns the principal sum of ___ ____________ Dollars on
______________ (the "Stated Maturity Date") [or date fixed for earlier
redemption (the "Redemption Date", and together with the Stated Maturity Date
with respect to principal repayable on such date, the "Maturity Date")], and to
pay interest thereon from ____________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
______________________ and ______________ in each year (each, an "Interest
Payment Date"), commencing _______________, at the rate of ___% per annum,
until the principal hereof is paid or duly provided for. The interest so
payable, and punctually paid or
<PAGE> 2
duly provided for, on any Interest Payment 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 the _____ or _____ (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date [at the office or agency of the Company maintained for such purpose;
provided, however, that such interest may be paid, at the Company's option, by
mailing a check to such Holder at its registered address or by transfer of
funds to an account maintained by such Holder within the United States]. Any
such interest not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date, and may be paid to the
Holder in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee 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. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
The principal of this Note payable on the Stated Maturity Date
[or the principal of, premium, if any, and, if the Redemption Date is not an
Interest Payment Date, interest on this Note payable on the Redemption Date]
will be paid against presentation of this Note at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City of
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest payable on this Note on any Interest Payment Date and on the
[Stated] Maturity Date [or Redemption Date], as the case may be, will include
interest accrued from and including the next preceding Interest Payment Date in
respect of which interest has been paid or duly provided for (or from and
including ______________, if no interest has been paid on this Note) to but
excluding such Interest Payment Date or the [Stated] Maturity Date [or
Redemption Date], as the case may be. If any Interest Payment Date or the
[Stated] Maturity Date or [Redemption Date] falls on a day that is not a
Business Day, as defined below, principal, premium, if any, and/or interest
payable with respect to such Interest Payment Date or [Stated] Maturity Date
[or Redemption Date], as the case may be, will be paid on the next succeeding
Business Day with the same force and effect as if it
<PAGE> 3
were paid on the date such payment was due, and no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date or
[Stated] Maturity Date [or Redemption Date], as the case may be. "Business
Day" means any day, other than a Saturday or Sunday, on which banks in the City
of New York are not required or authorized by law or executive order to close.
[If this Note is a Global Security, insert -- All payments of
principal, premium, if any, and interest in respect of this Note will be made
by the Company in immediately available funds.]
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.
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its facsimile corporate seal.
Dated: __________
WEINGARTEN REALTY INVESTORS
By:____________________________
Attest:
_________________________ By:____________________________
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to in the
within-mentioned Indenture.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
as Trustee
By:_________________________
Authorized Signatory
<PAGE> 5
[Reverse of Security]
WEINGARTEN REALTY INVESTORS
___% Note due _____
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 __________, 1994 (herein called the
"Indenture") between the Company and Texas Commerce Bank National Association,
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 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 "____% Notes due _______" (collectively, the "Notes"),
and the aggregate principal amount of the Notes to be issued under such series
is limited to $___________ (except for Notes authenticated and delivered upon
transfer of, or in exchange for, or in lieu of other Notes). All terms used in
this Note which are defined in the Indenture shall have the meanings assigned
to them in the Indenture.
If an Event of Default, as defined in the Indenture, shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
[If applicable, insert -- The Notes may not be redeemed prior
to the Stated Maturity Date.]
[If applicable, insert -- The Notes are subject to redemption
[(1)] [If applicable, insert -- on _______ __ in any year commencing with the
year ____ and ending with the year ____ through operation of the sinking fund
for this series at a Redemption Price equal to 100% of the principal amount,
[and] [(2)] [If applicable, insert -- at any time [on or after __________], as
a whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed on or
before __________, __%, and if redeemed] during the 12-month period beginning
__________ of the years indicated.
<PAGE> 6
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption [If applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date; provided, however, that installments of interest on this
Note whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holder of this Note, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Notes are subject to redemption
(1) on _______ in any year commencing with the year ____ and ending with the
year ______through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after ________________], as a whole or in
part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning __________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, that installments of interest on this Note whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holder
of this Note, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
<PAGE> 7
[Notwithstanding the foregoing, the Company may not, prior to
__________, redeem any Notes as contemplated by [Clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than ____% per annum.]
[The sinking fund for the Notes provides for the redemption on
__________ in each year, beginning with the year ____ and ending with the year
____, of [not less than] $ __________ [("mandatory sinking fund") and not more
than $ __________] aggregate principal amount of the Notes. [The Notes
acquired or redeemed by the Company otherwise than through [mandatory] sinking
fund payments may be credited against subsequent [mandatory] sinking fund
payments otherwise required to be made in the [describe order] order in which
they become due.]]
[Notice of redemption will be given by mail to Holders of
Securities, not less than 30 nor more than 60 days prior to the Redemption
Date, all as provided in the Indenture.]
[In the event of redemption of this Note in part only, a new
Note or Notes for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof.]
[If applicable, insert conversion provisions set forth in any
Board Resolution or indenture supplemental to the Indenture.]
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, in certain instances, of the
Outstanding Securities of any series to waive, on behalf of all of the Holders
of Securities of such series, certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note
shall be conclusive and binding upon such Holder and upon
<PAGE> 8
all future Holders of this Note and other Notes issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) 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 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 premium, if any) 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 denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
As provided in the Indenture and subject to certain
limitations therein [and herein] set forth, this 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.
[Unless otherwise provided in the Indenture, the Securities of
this series are issuable only in registered form without coupons in
denominations of $___________and any integral multiple thereof.]
No service charge shall be made for any such registration of
transfer or exchange, but the 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 hereof
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.
<PAGE> 9
The Indenture and the Notes shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements
made and to be performed entirely in such State.
<PAGE> 1
Exhibit (4)(d)
[Form of Fixed Rate Redeemable or Non-Redeemable
Subordinated Security]
If the Holder of this Note (as indicated below) is The
Depository Trust Company (the "Depository") or a nominee of the Depository,
this Note is a Global Security and the following two legends apply:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (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.
[Face of Security]
WEINGARTEN REALTY INVESTORS
___% Subordinated Note due _____
No. _____________ $____________
WEINGARTEN REALTY INVESTORS, a Texas real estate investment
trust (herein referred to as the "Company", which term includes any successor
corporation under the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to ______________________________________ or
registered assigns the principal sum of ________________ Dollars on
______________ (the "Stated Maturity Date") [or date fixed for earlier
redemption (the "Redemption Date", and together with the Stated Maturity Date
with respect to principal repayable on such date, the "Maturity Date")], and to
pay interest thereon from ____________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on ____
<PAGE> 2
___________________ and ______________ in each year (each, an "Interest Payment
Date"), commencing _______________, at the rate of ___% per annum, until the
principal hereof is paid or duly provided for. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Holder in whose name this 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 the _____ or _____
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date [at the office or agency of the Company maintained for
such purpose; provided, however, that such interest may be paid, at the
Company's option, by mailing a check to such Holder at its registered address
or by transfer of funds to an account maintained by such Holder within the
United States]. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date,
and may be paid to the Holder in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee 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. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
The principal of this Note payable on the Stated Maturity Date
[or the principal of, premium, if any, and, if the Redemption Date is not an
Interest Payment Date, interest on this Note payable on the Redemption Date]
will be paid against presentation of this Note at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City of
New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest payable on this Note on any Interest Payment Date and on the
[Stated] Maturity Date [or Redemption Date], as the case may be, will include
interest accrued from and including the next preceding Interest Payment Date in
respect of which interest has been paid or duly provided for (or from and
including ______________, if no interest has been paid on this Note) to but
excluding such Interest Payment Date or the [Stated] Maturity Date [or
Redemption Date], as the case may be. If any Interest Payment Date or the
[Stated] Maturity Date or [Redemption Date] falls on a day that is not a
Business Day, as defined below,
<PAGE> 3
principal, premium, if any, and/or interest payable with respect to such
Interest Payment Date or [Stated] Maturity Date [or Redemption Date], as the
case may be, will be paid on the next succeeding Business Day with the same
force and effect as if it were paid on the date such payment was due, and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date or [Stated] Maturity Date [or Redemption Date], as
the case may be. "Business Day" means any day, other than a Saturday or
Sunday, on which banks in the City of New York are not required or authorized
by law or executive order to close.
[If this Note is a Global Security, insert -- All payments of
principal, premium, if any, and interest in respect of this Note will be made
by the Company in immediately available funds.]
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.
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its facsimile corporate seal.
Dated: __________________
WEINGARTEN REALTY INVESTORS
By: ____________________________
Attest:
__________________________ By: ____________________________
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to in the
within-mentioned Indenture.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
as Trustee
By: _________________________
Authorized Signatory
<PAGE> 5
[Reverse of Security]
WEINGARTEN REALTY INVESTORS
___% Subordinated Note due _____
This Note is one of a duly authorized issue of subordinated
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of __________, 1994
(herein called the "Indenture") between the Company and Texas Commerce Bank
National Association, 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 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 "____% Subordinated
Notes due _______" (collectively, the "Notes"), and the aggregate principal
amount of the Notes to be issued under such series is limited to $___________
(except for Notes authenticated and delivered upon transfer of, or in exchange
for, or in lieu of other Notes). All terms used in this Note which are defined
in the Indenture shall have the meanings assigned to them in the Indenture.
If an Event of Default, as defined in the Indenture, shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
[If applicable, insert -- The Notes may not be redeemed prior
to the Stated Maturity Date.]
[If applicable, insert -- The Notes are subject to redemption
[(1)] [If applicable, insert -- on __________ in any year commencing with the
year ____ and ending with the year ____ through operation of the sinking fund
for this series at a Redemption Price equal to 100% of the principal amount,
[and] [(2)] [If applicable, insert -- at any time [on or after __________], as
a whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed on or
before __________, __%, and if redeemed] during the 12-month period beginning
__________ of the years indicated.
<PAGE> 6
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption [If applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date; provided, however, that installments of interest on this
Note whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holder of this Note, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Notes are subject to redemption
(1) on _______ in any year commencing with the year ____ and ending with the
year ______through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after ________________], as a whole or in
part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning __________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, that installments of interest on this Note whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holder
of this Note, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
<PAGE> 7
[Notwithstanding the foregoing, the Company may not, prior to
__________, redeem any Notes as contemplated by [Clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than ____% per annum.]
[The sinking fund for the Notes provides for the redemption on
__________ in each year, beginning with the year ____ and ending with the year
____, of [not less than] $ __________ [("mandatory sinking fund") and not more
than $ __________] aggregate principal amount of the Notes. [The Notes
acquired or redeemed by the Company otherwise than through [mandatory] sinking
fund payments may be credited against subsequent [mandatory] sinking fund
payments otherwise required to be made in the [describe order] order in which
they become due.]]
[Notice of redemption will be given by mail to Holders of
Securities, not less than 30 nor more than 60 days prior to the Redemption
Date, all as provided in the Indenture.]
[In the event of redemption of this Note in part only, a new
Note or Notes for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof.]
[If applicable, insert conversion provisions set forth in any
Board Resolution or indenture supplemental to the Indenture.]
The indebtedness evidenced by the Securities is, to the extent
and in the manner set forth in the Indenture, expressly subordinated and
subject in right of payment to the prior payment in full of all Senior Debt,
and this Note is issued subject to such provisions of the Indenture. Each
Holder of this Note, by accepting the same, agrees to and shall be bound by
such provisions of the Indenture and authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate
such subordination as provided in the Indenture and appoints the Trustee his
attorney-in-fact for any and all such purposes.
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
<PAGE> 8
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, in certain instances, of the
Outstanding Securities of any series to waive, on behalf of all of the Holders
of Securities of such series, certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this 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 hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) 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 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 premium, if any) 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 denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
As provided in the Indenture and subject to certain
limitations therein [and herein] set forth, this 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.
[Unless otherwise provided in the Indenture, the Securities of
this series are issuable only in registered form without coupons in
denominations of $___________and any integral multiple thereof.]
<PAGE> 9
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 hereof
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 and the Notes shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements
made and to be performed entirely in such State.
<PAGE> 1
Exhibit (4)(g)
STATEMENT OF DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL AND
OTHER SPECIAL RIGHTS OF PREFERRED
SHARES AND QUALIFICATIONS, LIMITATIONS
AND RESTRICTIONS THEREOF
OF
____% SERIES [A] [CUMULATIVE] [REDEEMABLE] PREFERRED SHARES
OF
WEINGARTEN REALTY INVESTORS
____________________
Weingarten Realty Investors, a real estate investment trust organized
under the laws of Texas (the "Company"), certifies that pursuant to the
authority contained in Article Seven of its Amended and Restated Declaration
of Trust (the "Declaration of Trust") the Board of Trust Managers of the
Company adopted the following resolution at a meeting duly held on
_____________, 1994 which resolution remains in full force and effect on the
date hereof:
RESOLVED, that there is hereby established the following series of
authorized preferred shares of beneficial interest in the Company having a par
value of $0.03 per share, which shall be designated as "____% Series [A]
[Cumulative] [Redeemable] Preferred Shares" (the "Preferred Shares") and which
shall consist of up to _________ shares having the following voting powers,
preferences and relative, participating, optional and other special rights,
qualifications, limitations and restrictions:
1. Certain Definitions
Unless the context otherwise requires, the terms defined in this
paragraph 1 shall have, for all purposes of this resolution, the meanings
herein specified (with terms defined in the singular having comparable meanings
when used in the plural).
Beneficial Ownership. The term "Beneficial Ownership" shall mean the
direct or indirect ownership of Preferred Shares by a Person. The terms
"Beneficial Owner," "Beneficially Owns" and "Beneficially Owned" shall have the
correlative meanings.
Business Day. The term "Business Day" shall mean any day, other than
a Saturday or Sunday, that is neither a legal holiday nor a day on which
banking institutions in New York City are
<PAGE> 2
authorized or required by law, regulation or executive order to close.
Code. The term "Code" shall mean the Internal Revenue Code of 1986,
as amended.
Common Equity. The term "Common Equity" shall mean all capital shares
now or hereafter authorized by the Company, excluding the Preferred Shares and
any other preferred shares issued by the Company, but including the Common
Shares.
Common Shares. The term "Common Shares" shall mean the common shares
of beneficial interest, $0.03 par value, of the Company.
Dividend Payment Date. The term "Dividend Payment Date" shall have
the meaning set forth in subparagraph (b) of paragraph 2 below.
Dividend Period. The term "Dividend Period" shall mean the period
from, and including, the Initial Issue Date to, but not including, the first
Dividend Payment Date and thereafter, each quarterly period from, and
including, the Dividend Payment Date to, but not including, the next Dividend
Payment Date.
Initial Issue Date. The term "Initial Issue Date" shall mean the date
that Preferred Shares are first issued by the Company.
IRS. The term "IRS" shall mean the United States Internal Revenue
Service.
Liquidation Preference. The term "Liquidation Preference" shall mean
$_______________ per share.
Ownership Limit. The term "Ownership Limit" shall mean not more than
9.8% of the Company's outstanding capital shares, including Preferred Shares.
Person. The term "Person" shall mean an individual, corporation,
association, partnership, estate, trust, joint stock company or other entity,
but does not include an underwriter which participates in a public offering of
the Preferred Shares.
Record Date. The term "Record Date" shall mean the date designated by
the Board of Trust Managers of the Company for determining shareholders with
respect to any dividend declarations; provided, however, that such Record Date
shall be the first day of the calendar month in which the applicable Dividend
Payment Date falls or such other date designated by the Board of Trust Managers
for the payment of dividends that is not more than thirty (30) days nor less
than ten (10) days prior to such Dividend Payment Date.
-2-
<PAGE> 3
Redemption Date. The term "Redemption Date" shall have the meaning
set forth in subparagraph (b) of paragraph 4 below.
Redemption Price. The term "Redemption Price" shall mean a price per
share equal to $________ together with accumulated and unpaid dividends, if
any, thereon to the Redemption Date.
REIT. The term "REIT" shall mean a Real Estate Investment Trust under
Section 856 of the Code.
2. Dividends
(a) The recordholders of Preferred Shares shall be entitled to
receive dividends, when and as declared by the Board of Trust Managers of the
Company, out of funds legally available for payment of dividends. Such
dividends by the Company shall be payable in cash at the rate of ___% or
$____________ per annum per Preferred Share.
(b) [Dividends on Preferred Shares shall accumulate from the
Initial Issue Date.] Dividends shall be payable quarterly in arrears when and
as declared by the Board of Trust Managers of the Company on ________,
________, ________, and ________ of each year (each, a "Dividend Payment
Date"), commencing on _____________, 199_. If any Dividend Payment Date occurs
on a day that is not a Business Day, any accumulated dividends otherwise
payable on such Dividend Payment Date shall be paid on the next succeeding
Business Day. The amount of dividends payable on Preferred Shares for each
full Dividend Period shall be computed by dividing by four (4) the dividend
rate of $_____ per annum per Preferred Share set forth in subparagraph 2(a)
above. Dividends payable in respect of any Dividend Period that is less than a
full Dividend Period in length will be computed on the basis of a 360-day year
consisting of twelve 30-day months. Dividends shall be paid to the holders of
record of the Preferred Shares as their names shall appear on the stock
transfer records of the Company at the close of business on the Record Date for
such dividend. Dividends in respect of any past Dividend Periods that are in
arrears may be declared and paid at any time to holders of record on the Record
Date therefor. Any dividend payment made on Preferred Shares shall be first
credited against the earliest accumulated but unpaid dividend due that remains
payable.
(c) If any Preferred Shares are outstanding, no dividends (other
than in Common Shares or other capital shares of the Company ranking junior to
the Preferred Shares as to dividends and upon liquidation) shall be declared or
paid or set apart for payment on the Common Shares or any capital shares
ranking junior to or on a parity with the Preferred Shares as to dividends or
upon liquidation for any period unless full accumulated dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment
-3-
<PAGE> 4
on the Preferred Shares for [all past Dividend Periods and] the then current
Dividend Period. If Preferred Shares of any series are outstanding, no
dividends will be declared or paid or set apart for payment on the Preferred
Shares of the Company of any other series ranking, as to dividends, on a parity
with or junior to the Preferred Shares of such series for any period unless (i)
if such series of Preferred Shares has a cumulative dividend, full cumulative
dividends have been or contemporaneously are declared and paid or declared and
a sum sufficient for the payment thereof set apart for such payment on the
Preferred Shares of such series for all past dividend periods and the then
current dividend period or (ii) if such series of Preferred Shares does not
have a cumulative dividend, full dividends for the then current dividend period
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on the Preferred
Shares of such series. When dividends are not paid in full (or a sum
sufficient for such full payment is not so set apart) upon the Preferred Shares
and the preferred shares ranking on a parity as to dividends with the Preferred
Shares, then notwithstanding the first sentence of this subparagraph 2(c), all
dividends declared upon the Preferred Shares and such other preferred shares
shall be declared pro rata so that the amount of dividends declared per
Preferred Share and such other preferred shares shall in all cases bear to each
other the same ratio that accumulated dividends per Preferred Share [without
accumulation for any unpaid dividends for prior Dividend Periods unless
previously declared] and such other preferred shares bear to each other. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Preferred Shares that may be in
arrears.
(d) In addition to the provisions of subparagraph 2(c) above,
unless full accumulated dividends on the Preferred Shares have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for payment for [all past Dividend Periods and]
the then current Dividend Period, no Common Shares or any capital shares
ranking junior to or on a parity with the Preferred Shares as to dividends or
upon liquidation shall be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any such shares) by the Company (except by conversion
into or exchange for capital shares of the Company ranking junior to the
Preferred Shares as to dividends and upon liquidation).
(e) No dividends on Preferred Shares shall be declared by the
Board of Trust Managers of the Company or paid or set apart for payment by the
Company at such time as the terms and provisions of any agreement of the
Company, including any agreement relating to its indebtedness, prohibits such
declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a
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<PAGE> 5
default thereunder, or if such declaration or payment shall be restricted or
prohibited by law.
(f) Notwithstanding anything contained herein to the contrary,
dividends on the Preferred Shares, if not paid on a Dividend Payment Date, will
accumulate whether or not dividends are declared for such Dividend Payment
Date, whether or not the Company has earnings and whether or not there are
funds legally available for the payment of such dividends.
(g) If, for any taxable year, the Company elects to designate as
"capital gain dividends" (as defined in Section 857 of the Code), any portion
(the "Capital Gains Amount") of the dividends paid or made available for the
year to holders of all classes of capital shares (the "Total Dividends"), then
the portion of the Capital Gains Amount that shall be allocable to holders of
the Preferred Shares shall be the amount that the total dividends paid or made
available to the holders of the Preferred Shares for the year bears to the
Total Dividends.
3. Distributions Upon Liquidation, Dissolution
or Winding Up
(a) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Company (referred to herein as "liquidation"),
subject to the prior preferences and other rights of any capital shares of the
Company (which has been approved by the holders of the Preferred Shares as
required under paragraph 6) as to liquidation preferences, but before any
distribution or payment shall be made to the holders of Common Shares or
capital shares ranking junior to the Preferred Shares upon liquidation, the
holders of Preferred Shares shall be entitled to receive out of the assets of
the Company legally available for distribution to its shareholders liquidating
distributions in cash or property at its fair market value as determined by the
Board of Trust Managers of the Company in the amount of the Liquidation
Preference per share plus an amount equal to all dividends accumulated and
unpaid thereon to the date of such liquidation [without accumulation of any
unpaid dividends for prior Dividend Periods unless previously declared]. After
payment of the full amount of the liquidating distributions to which they are
entitled, the holders of Preferred Shares will have no right to any claim on
any of the remaining assets of the Company and shall not be entitled to any
other distribution in the event of liquidation of the Company.
(b) In the event that, upon any such liquidation, the legally
available assets of the Company are insufficient to pay the amount of the full
liquidating distribution to which holders of the Preferred Shares are entitled
pursuant to subparagraph 3(a) and the corresponding amounts that are payable to
holders of the preferred shares ranking on a parity with the Preferred Shares
upon any
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<PAGE> 6
liquidation, then the holders of the Preferred Shares and all other such
preferred shares shall share ratably in any such distribution of assets in
proportion to the full liquidating distributions to which they otherwise would
be respectively entitled. Neither the consolidation or merger of the Company
into or with another Person, whether or not the Company is the surviving
entity, nor the sale, lease, transfer or conveyance of all or substantially all
of the assets of the Company to another Person shall be deemed a liquidation,
dissolution or winding up of the affairs of the Company within the meaning of
this paragraph 3.
4. [Redemption by the Company]
(a) The Preferred Shares may be redeemed for cash, in whole or
from time to time in part, at any time after ___________ 199_ at the option of
the Company at the Redemption Price.
(b) Each date fixed for redemption pursuant to subparagraph 4(a)
above is called a "Redemption Date". If the Redemption Date is after a Record
Date and before the related Dividend Payment Date, the dividend payable on such
Dividend Payment Date shall be paid to the holder in whose name the Preferred
Shares to be redeemed are registered at the close of business on such Record
Date notwithstanding the redemption thereof between such Record Date and the
related Dividend Payment Date or the Company's default in the payment of the
dividend due.
(c) In case of redemption of less than all Preferred Shares at the
time outstanding, the Preferred Shares to be redeemed shall be selected pro
rata from the holders of record of such shares in proportion to the number of
Preferred Shares held by such holders (with adjustments to avoid redemption of
fractional shares) or by any other equitable method determined by the Company.
(d) Notice of any redemption will be mailed by the Company,
postage prepaid, not less than 30 nor more than 60 days prior to the Redemption
Date, addressed to the holders of record of the Preferred Shares to be redeemed
at their addresses as they appear on the stock transfer records of the Company.
No failure to give such notice or any defect therein or in the mailing thereof
shall affect the validity of the proceedings for the redemption of any
Preferred Shares except as to the holder to whom the Company has failed to give
notice or except as to the holder to whom notice was defective. In addition to
any information required by law or by the applicable rules of any exchange upon
which Preferred Shares may be listed or admitted to trading, such notice shall
state: (i) the Redemption Date; (ii) the Redemption Price; (iii) the number of
Preferred Shares to be redeemed; (iv) the place or places where certificates
for such shares are to be surrendered for payment of the Redemption Price; and
(v) that dividends on the shares to be redeemed will cease to accumulate on the
Redemption Date.
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<PAGE> 7
(e) If notice has been mailed in accordance with subparagraph 4(d)
above and provided that on or before the Redemption Date specified in such
notice all funds necessary for such redemption shall have been irrevocably set
aside by the Company, separate and apart from its other funds in trust for the
pro rata benefit of the holders of the Preferred Shares so called for
redemption, so as to be, and to continue to be available therefor, then, from
and after the Redemption Date, dividends on the Preferred Shares so called for
redemption shall cease to accumulate, and said shares shall no longer be deemed
to be outstanding and shall not have the status of Preferred Shares and all
rights of the holders thereof as shareholders of the Company (except the right
to receive the Redemption Price) shall cease. Upon surrender, in accordance
with said notice, of the certificates for any Preferred Shares so redeemed
(properly endorsed or assigned for transfer, if the Company shall so require
and the notice shall so state), such Preferred Shares shall be redeemed by the
Company at the Redemption Price. In case fewer than all of the Preferred
Shares represented by any such certificate are redeemed, a new certificate or
certificates shall be issued representing the unredeemed Preferred Shares
without cost to the holder thereof.
(f) Any funds deposited with a bank or trust company for the
purpose of redeeming Preferred Shares shall be irrevocable except that:
(i) the Company shall be entitled to receive from such
bank or trust company the interest or other earnings, if any, earned on any
money so deposited in trust, and the holders of any shares redeemed shall have
no claim to such interest or other earnings; and
(ii) any balance of monies so deposited by the Company and
unclaimed by the holders of the Preferred Shares entitled thereto at the
expiration of two (2) years from the applicable Redemption Date shall be
repaid, together with any interest or other earnings earned thereon, to the
Company, and after any such repayment, the holders of the shares entitled to
the funds so repaid to the Company shall look only to the Company for payment
without interest or other earnings.
(g) No Preferred Shares may be redeemed except with funds legally
available for the payment of the Redemption Price.
(h) Unless full accumulated dividends on all Preferred Shares
shall have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for payment for [all past
Dividend Periods and] the then current Dividend Period, no Preferred Shares
shall be redeemed (unless all outstanding Preferred Shares are simultaneously
redeemed) or purchased or otherwise acquired directly or indirectly (except by
conversion into or exchange for capital shares of the Company
-7-
<PAGE> 8
ranking junior to the Preferred Shares as to dividends and upon liquidation);
provided, however, that the foregoing shall not prevent the purchase or
acquisition of Preferred Shares to preserve the REIT status of the Company or
pursuant to a purchase or exchange offer made on the same terms to holders of
all outstanding Preferred Shares.
(i) All Preferred Shares redeemed pursuant to this paragraph 4
shall be retired and shall be restored to the status of authorized and unissued
preferred shares, without designation as to series and may thereafter be
reissued as any series of preferred shares.
5. [Conversion of Preferred Shares into Common Shares]
To be determined.
6. Voting Rights
(a) The holders of record of Preferred Shares shall not be
entitled to any voting rights except as hereinafter provided in this paragraph
6 or as otherwise provided by law. The Company shall not, without the
affirmative vote or consent of the holders of at least two-thirds of the
Preferred Shares outstanding at the time, given in person or by proxy, either
in writing or at a meeting (such Preferred Shares voting separately as a
class), (i) authorize, create or issue, or increase the authorized or issued
amount of, any class or series of preferred shares ranking senior as to
dividend, liquidation or voting rights, or reclassify any authorized capital
shares into any such shares, or create, authorize or issue any obligation or
security convertible into or evidencing the right to purchase any such shares,
or (ii) amend, alter or repeal the provisions of the Declaration of Trust or
the Statement of Designations for the Preferred Shares, whether by merger,
consolidation or otherwise (collectively referred to herein as an "Event"), so
as to materially and adversely affect any right, preference, privilege or
voting power of the Preferred Shares or the holders thereof; provided, however,
that with respect to subparagraph 6(a)(ii) above, so long as the Preferred
Shares remain outstanding with the terms thereof materially unchanged, taking
into account that upon the occurrence of an Event, the Company may not be the
surviving entity, the occurrence of any such Event shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
power of holders of Preferred Shares, and provided further that (x) any
increase in the amount of the authorized Preferred Shares or the creation or
issuance of any other series of Preferred Shares, or (y) any increase in the
amount of capital shares ranking junior to or on parity with the Preferred
Shares as to dividends and upon liquidation also shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers.
-8-
<PAGE> 9
(b) If and whenever dividends payable on Preferred Shares shall be
in arrears for six (6) or more consecutive quarterly periods, then the holders
of Preferred Shares, voting separately as a class (with such other series as
provided below), shall be entitled at the next annual meeting of the
shareholders to elect two (2) additional Trust Managers. Upon election, such
Trust Managers shall become additional Trust Managers of the Company and
members of the class of Trust Managers as so designated by the Company in
accordance with the Declaration of Trust and the authorized number of Trust
Managers of the Company shall thereupon be automatically increased by such
number of Trust Managers.
(c) In any matter in which the Preferred Shares may vote (as
expressly provided herein or as may be required by law), including any action
by written consent, each Preferred Share shall be entitled to one (1) vote.
[Remaining terms and conditions of Voting Rights to be determined.]
7. Restrictions on Ownership and Transfer to Preserve Tax Benefit
and REIT Status
(a) Restriction on Ownership and Transfer.
(i) To assist the Company in maintaining its REIT status,
no Person shall Beneficially Own Preferred Shares which singly or when
aggregated with such Person's other Beneficial Ownership of the Company's
capital shares would exceed the Ownership Limit. Preferred Shares Beneficially
Owned in violation of the restrictions contained in this subparagraph 7(a)(i)
shall not be entitled to any dividend payments, voting rights and other
benefits and any transfer in violation of such restrictions may be prohibited.
(b) Legend. Each certificate for Preferred Shares shall bear the
following legend:
This Certificate and the shares represented hereby are subject in all
respects to the laws of the State of Texas and to the Declaration of Trust and
Bylaws of the Trust and any amendments thereto. The Declaration of Trust, as
amended, provides that no shareholder shall have any preemptive rights to
acquire unissued or treasury shares of the Trust. The Declaration of Trust
also restricts the transfer of the shares of beneficial interest evidenced by
this Certificate in connection with the qualification by the Trust as a real
estate investment trust. Copies of the Trust's Declaration of Trust are on
file with the Harris County, Texas, County Clerk and will be furnished to any
shareholder of record without charge upon written request to the Trust as its
principal place of business or registered office.
-9-
<PAGE> 10
The Trust will furnish a full statement of the designations and any
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption of the shares of each class which the Trust is authorized to issue
and the difference in the relative rights and preferences between the shares of
each series of any preferred class to the extent they have been set and the
authority of the Trust Managers to set the relative rights and preferences of
subsequent series to any holder of shares without change on written request to
the Trust at its principal place of business or registered office.
8. Exclusion of Other Rights.
Except as may otherwise be required by law, the Preferred Shares shall
not have any voting powers, preferences and relative, participating, optional
or other special rights, other than those specifically set forth in this
resolution (as such resolution may be amended from time to time) and in the
Declaration of the Trust. The Preferred Shares shall have no preemptive or
subscription rights.
9. Headings of Subdivisions.
The headings of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
10. Severability of Provisions.
If any voting powers, preferences and relative, participating,
optional and other special rights of the Preferred Shares and qualifications,
limitations and restrictions thereof set forth in this resolution (as such
resolution may be amended from time to time) are invalid, unlawful or incapable
of being enforced by reason of any rule of law or public policy, all other
voting powers, preferences and relative, participating, optional and other
special rights of Preferred Shares and qualifications, limitations and
restrictions thereof set forth in this resolution (as amended) that can be
given effect without the invalid, unlawful or unenforceable voting powers,
preferences and relative, participating, optional and other special rights of
Preferred Shares and qualifications, limitations and restrictions thereof
shall, nevertheless, remain in full force and effect, and no voting powers,
preferences and relative, participating, optional or other special rights of
Preferred Shares and qualifications, limitations and restrictions thereof
herein set forth shall be deemed dependent upon any other such voting powers,
preferences and relative, participating, optional or other special rights of
Preferred Shares and qualifications, limitations and restrictions thereof
unless so expressed herein.
-10-
<PAGE> 11
IN WITNESS WHEREOF, the Company has caused this certificate to be duly
executed by ___________________ and attested by ___________________, its
secretary, this ___ day of ________, 199_.
WEINGARTEN REALTY INVESTORS
By: _______________________________
ATTEST:
By: __________________________
Secretary
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<PAGE> 1
Exhibit (4)(h)
[FACE OF SECURITY]
Preferred Shares of Preferred Shares of
Beneficial Interest Beneficial Interest
Par Value $.03 Par Value $.03
Number: Shares:
P-..... .......
Formed Under the Laws This Certificate is Transferable
of the State of Texas in Houston, Texas
and New York, New York
CUSIP ........
See Reverse for Certain Definitions
WEINGARTEN REALTY INVESTORS
A Texas Real Estate Investment Trust
This Certifies that
Is the owner of
Fully Paid and Nonassessable Preferred Shares of Benefical Interest of
Weingarten Realty Investors (the "Trust"), transferable on the books of the
Trust by the holder hereof in person, or by duly authorized attorney, upon
surrender of this Certificate properly endorsed. This Certificate is not valid
unless countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the Trust and the facsimile signatures of its
duly authorized representatives.
Dated: Countersigned and Registered
Transfer Agent and Registrar
Secretary Chairman Authorized Signature
THERE ARE RESTRICTIONS ON THE TRANSFER OF THE SHARES EVIDENCED BY THIS
CERTIFICATE AS MORE FULLY SET FORTH ON THE REVERSE HEREOF.
<PAGE> 2
[REVERSE OF SECURITY]
WEINGARTEN REALTY INVESTORS
This Certificate and the shares represented hereby are subject in all
respects to the laws of the State of Texas and to the Declaration of Trust and
Bylaws of the Trust and any amendments thereto. The Declaration of Trust, as
amended, provides that no shareholder shall have any preemptive rights to
acquire unissued or treasury shares of the Trust. The Declaration of Trust also
restricts the transfer of the shares of beneficial interest evidenced by this
Certificate in connection with the qualification by the Trust as a real estate
investment trust. Copies of the Trust's Declaration of Trust are on file with
the Harris County, Texas, County Clerk and will be furnished to any shareholder
of record without charge upon written request to the Trust at its principal
place of business or registered office.
The Trust will furnish a full statement of the designations and any
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and condtions of
redemption of the shares of each class which the Trust is authorized to issue
and the difference in the relative rights and preferences between the shares of
each series of any preferred class to the extent they have been set and the
authority of the Trust Managers to set the relative rights and preferences of
subsequent series to any holder of shares without charge on written request to
the Trust at its principal place of business or registered office.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT-________________________
TEN ENT - as tenants by the (Cust) (Minor)
entireties
JT TEN - as joint tenants with under Uniform Gifts to Minors Act_________
right of survivorship State
and not as tenants
in common
Additional abbreviations may also be used though not in the above list.
For value received, ................. hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OR ASSIGNEE
________________________________________
| |
|________________________________________|....................................
..............................................................................
Please print or typewrite name and address
including postal zip code of assignee
..............................................................................
..............................................................................
Shares
..............................................................................
of Beneficial Interest represented by the within Certificate, and do hereby
irrevocable constitute and appoint
..............................................................................
Attorney to transfer the said shares on the books of the within-named Trust
with full power of substitution in the premises.
Dated, ............................. .....................................
....................................
Signature Guaranteed:
<PAGE> 3
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the Certificate, in every particular, without
alteration or enlargement, or any change whatever.
<PAGE> 1
Exhibit (5)
February 10, 1995
Trust Managers
Weingarten Realty Investors
2600 Citadel Plaza Drive
Suite 300
Houston, Texas 77008
Gentlemen:
We have acted as counsel for Weingarten Realty Investors, a Texas
real estate investment trust (the "Company"), in connection with the Company's
Registration Statement on Form S-3 (the "Registration Statement") to be filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), relating to (i) senior and
subordinated debt securities of the Company ("Debt Securities"), (ii) preferred
shares of beneficial interest in the Company, par value $.03 per share
("Preferred Shares"), and (iii) common shares of beneficial interest in the
Company, par value .03 per share ("Common Shares") (the Debt Securities,
Preferred Shares and Common Shares are collectively referred to herein as the
"Securities"), to be issued and sold by the Company from time to time pursuant
to Rule 415 under the Act in an amount not to exceed $200,000,000 in principal
amount of proceeds to the Company. At your request, this opinion is being
furnished to you for filing as Exhibit 5 to the Registration Statement.
In our capacity as your counsel in the connection referred to
above, we have examined (i) the Company's Amended and Restated Declaration of
Trust and Amended Bylaws, each as amended to date, (ii) the form of Indenture
to be executed by the Company and Texas Commerce Bank, National Association, as
trustee, relating to senior Debt Securities (the "Senior Debt Indenture"),
(iii) the form of Indenture to be executed by the Company and Texas Commerce
Bank, National Association, as trustee, relating to subordinated Debt
Securities (the "Subordinated Debt Indenture"), and (iv) the originals, or
copies certified or otherwise identified, of records of the Company,
certificates of public officials and of representatives of the Company,
statutes and other instruments and documents as a basis for the opinions
hereinafter expressed. In giving such opinions, we have relied upon
certificates of officers of the Company with respect to the accuracy of the
material factual matters contained in such certificates.
<PAGE> 2
Weingarten Realty Investors
February 9, 1995
Page 2
On the basis of the foregoing, and subject to the assumptions,
limitations and qualifications hereinafter set forth, we are of the opinion
that:
1. With respect to the Preferred Shares, when (i) the Board of
Trust Managers of the Company, or a duly constituted and acting committee
thereof (such Board of Trust Managers or committee being hereinafter referred
to as the "Board") has taken all necessary action to approve the issuance and
terms of the Preferred Shares, the terms of the offering thereof and related
matters, including the adoption of a Statement of Designation (a "Statement")
relating to such Preferred Shares and the filing of such Statement with the
County Clerk of Harris County, Texas, and (ii) certificates representing the
Preferred Shares have been duly executed, countersigned, registered and
delivered in accordance with the applicable definitive purchase, underwriting
or similar agreement approved by the Board upon payment of the consideration
therefor (not less than the par value of the Preferred Shares), the Preferred
Shares will be duly authorized, validly issued, fully paid and nonassessable.
2. With respect to the Common Shares, when (i) the Board has
taken all necessary action to approve the issuance and the terms of the
offering thereof and related matters, and (ii) certificates representing the
Common Shares have been duly executed, countersigned, registered and delivered
in accordance with the applicable definitive purchase, underwriting or similar
agreement approved by the Board upon payment of the consideration therefor (not
less than the par value of the Common Shares), the Common Shares will be duly
authorized, validly issued, fully paid and nonassessable.
3. With respect to Debt Securities to be issued under the
Senior Debt Indenture, when (i) the Senior Debt Indenture has been duly
authorized and validly executed and delivered by the Company to Texas Commerce
Bank National Association, as trustee, (ii) the Senior Debt Indenture has been
duly qualified under the Trust Indenture Act of 1939, as amended, (iii) the
Board has taken all necessary action to approve the issuance and terms of such
Debt Securities, the terms of the offering thereof and related matters, and
(iv) such Debt Securities have been duly executed, authenticated, issued and
delivered in accordance with the provisions of the Senior Debt Indenture and
the applicable definitive purchase, underwriting or similar agreement approved
by the Board upon payment (or delivery) of the consideration therefor provided
for therein, such Debt Securities will be legally issued and will constitute
valid and binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as such enforcement is subject to (x)
any applicable bankruptcy, insolvency, reorganization or other law relating to
or affecting creditors' rights generally and (y) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4. With respect to Debt Securities to be issued under the
Subordinated Debt Indenture, when (i) the Subordinated Debt Indenture has been
duly authorized and validly executed and delivered by the Company to Texas
Commerce Bank National Association, as trustee, (ii) the Subordinated Debt
Indenture has been duly
<PAGE> 3
Weingarten Realty Investors
February 9, 1995
Page 3
qualified under the Trust Indenture Act of 1939, as amended, (iii) the Board
has taken all necessary action to approve the issuance and terms of such Debt
Securities, the terms of the offering thereof and related matters, and (iv)
such Debt Securities have been duly executed, authenticated, issued and
delivered in accordance with the provisions of the Subordinated Debt Indenture
and the applicable definitive purchase, underwriting or similar agreement
approved by the Board upon payment (or delivery) of the consideration therefor
provided for therein, such Debt Securities will be legally issued and will
constitute valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as such enforcement is
subject to (x) any applicable bankruptcy, insolvency, reorganization or other
law relating to or affecting creditors' rights generally and (y) general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
For the purposes of this opinion, we have assumed that (i) the
Registration Statement, and any amendments thereto (including post-effective
amendments), will have become effective, (ii) a Prospectus Supplement will have
been prepared and filed with the Commission describing the Securities offered
thereby, (iii) all Securities will be issued and sold in compliance with
applicable federal and state securities laws and in the manner stated in the
Registration Statement and the appropriate Prospectus Supplement, and (iv) a
definitive purchase, underwriting or similar agreement with respect to any
Securities offered will have been duly authorized and validly executed and
delivered by the Company and the other parties thereto.
Very truly yours,
ANDREWS & KURTH L.L.P.
<PAGE> 1
Exhibit (10)
CREDIT AGREEMENT
DATED AS OF NOVEMBER 22, 1994
BETWEEN
WEINGARTEN REALTY INVESTORS
AND
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
AS AGENT, AND INDIVIDUALLY AS A BANK,
FIRST INTERSTATE BANK OF TEXAS, N.A.,
AND
THE BANKS DEFINED HEREIN
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES; LETTERS OF CREDIT
2.01. The Revolving Credit Loan; Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.02. Making the Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.03. Issuing the Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.04. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.05. Reduction of the Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.06. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.07. Additional Interest on LIBOR Rate Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.08. Interest Rate Determination and Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.09. Voluntary Interest Conversion of Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.10. Funding Losses Relating to LIBOR Rate Advances . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.11. Extension of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE III
PAYMENTS, PREPAYMENTS
INCREASED COSTS AND TAXES
3.01. Payments and Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
3.02. Voluntary Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.03. Mandatory Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.04. Increased Costs; Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3.05. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3.06. Certificate of Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE IV
CONDITIONS OF LENDING
4.01. Conditions Precedent to Initial Advances and Issuance of Letters of Credit . . . . . . . . . . . 27
4.02. Conditions Precedent to Each Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.02. Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.03. Use of Proceeds; Margin Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.04. Binding Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.05. No Conflict or Resultant Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.06. Compliance with Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.07. No Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.08. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.09. Taxes; Governmental Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.10. Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.11. Investment Company Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.12. Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.13. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.14. No Default or Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.15. Permits and Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5.16. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE VI
AFFIRMATIVE COVENANTS OF THE BORROWER
6.01. Reporting and Notice Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.02. Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.03. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.04. Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.05. Right of Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.06. Guarantees of Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.07. Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.08. Delivery of Certain Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VII
NEGATIVE COVENANTS
7.01. Liens, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.02. Limitations on Incurrence of Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.03. Unimproved Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.04. Sale or Other Disposition of Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
7.05. Mergers; Consolidations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
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7.06. Investments, Loans, and Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.07. Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.08. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.09. Change of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.10. Intentionally Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.11. Amendment of Organizational Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.12. Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.13. Assets Retained . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE VIII
EVENTS OF DEFAULT
8.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE IX
THE AGENT
9.01. Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.02. Agent's Reliance, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
9.03. TCB and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.04. Bank Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.05. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
9.06. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.07. Agent's Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
9.08. Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE X
MISCELLANEOUS
10.01. Amendments, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.02. Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
10.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.04. Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.05. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.06. Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
10.07. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
10.08. Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
10.09. Limitation on Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
10.10. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.11. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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10.12. SUBMISSION TO JURISDICTION; WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.13. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
10.14. Liability of Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
10.15. FINAL AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
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EXHIBITS
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Exhibit 1.01 - Form of Guaranty
Exhibit 2.02(a) - Notice of Borrowing
Exhibit 2.02(c) - Form of Note
Exhibit 2.03 - Form of Letter of Credit Request
Exhibit 2.09 - Form of Notice of Interest Conversion
Exhibit 5.01 - Subsidiaries
Exhibit 5.08 - Material Litigation
Exhibit 6.01(c) - Form of Compliance Certificate
Exhibit 10.08 - Form of Assignment and Acceptance
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CREDIT AGREEMENT
DATED AS OF NOVEMBER 22, 1994
Weingarten Realty Investors, a Texas real estate investment
trust (the "Borrower"), Texas Commerce Bank National Association, a national
banking association (in its individual capacity, "TCB"), First Interstate Bank
of Texas, N.A., a national banking association ("First Interstate") and any
bank that may hereafter become a party hereto in accordance with the provisions
hereof (each individually, including TCB and First Interstate, a "Bank" and
collectively, the "Banks"), and TCB as Agent hereunder (in such capacity, the
"Agent") for the Banks hereunder, hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Credit Agreement (the "Agreement"), the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Act" shall have the meaning specified in Section 5.01.
"Adjusted Net Proceeds" has the meaning specified in Section
7.04.
"Advance" means the revolving credit loan advances provided
for in Section 2.01(a) hereof.
"Affiliate" means any Person which, directly or indirectly,
controls or is controlled by or is under common control with another
Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common
control with"), as used with respect to any Person, means the power to
direct or cause the direction of the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities or by contract or otherwise.
"Annual Date" means, during the first 365 days of the term of
this Agreement, the date which is 364 days from and after the Closing
Date, and thereafter, means the anniversary of such date in each
succeeding year.
"Annual Service Charge" means, for any Calculation Period, the
sum of (i) the amount accrued during such period in respect of
interest (including the interest component of Capitalized Lease
obligations) and original issue discount of Debt of the Borrower and
its Subsidiaries, plus (ii) amounts accrued by the Borrower and its
Subsidiaries in respect of Disqualified Stock (including, without
limitation, dividends payable thereon).
<PAGE> 8
"Applicable Margin" shall mean with respect to any Advance,
the rate per annum for the respective Type of Advance indicated below
for the credit rating (or implied credit rating, as the case may be)
assigned to (or in respect of) long-term, senior unsecured Debt of the
Borrower by S&P, as reflected on the most recent Compliance
Certificate of the Borrower delivered in accordance with Section
6.01(c), or the most recent Rating Certificate delivered in accordance
with Section 6.01(h), as the case may be, and shall become effective
with respect to each such Advance requested by the Borrower on the
applicable Calculation Date, and shall remain in effect to (but not
including) the next Calculation Date:
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<CAPTION>
If the credit rating (or implied
credit rating) determined on any The Applicable Margin for the Type of
Calculation Date is: Advance indicated is:
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AA- or better (a) LIBOR Rate Advance .35%
(b) Effective Federal .53%
Funds Rate Advance
A+, A or A- (a) LIBOR Rate Advance .50%
(b) Effective Federal .68%
Funds Rate Advance
BBB+, BBB, BBB- (a) LIBOR Rate Advance .65%
(b) Effective Federal .83%
Funds Rate Advance
BB+ and below (a) LIBOR Rate Advance .80%
(b) Effective Federal .98%
Funds Rate Advance
</TABLE>
; provided that, if at any time no such credit rating (or implied
credit rating, as the case may be) shall be assigned to (or in respect
of) long-term, senior unsecured Debt of the Borrower by S&P, the
"Applicable Margin" shall mean the rate per annum for the respective
Type of Advance indicated below for the Coverage Ratio in effect, as
reflected on the most recent Compliance Certificate of the Borrower
delivered to the Agent in accordance with Section 6.01(c), or the most
recent Rating Certificate delivered in accordance with Section
6.01(h), as the case may be, and shall become effective with respect
to each such Advance requested
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by the Borrower on the applicable Calculation Date, and shall remain
in effect to (but not including) the next Calculation Date:
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<CAPTION>
The Applicable
If the Coverage Ratio Margin for the
determined on any Type of Advance
Calculation Date is: indicated is:
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Greater than (a) Libor Rate Advance .50%
3.0 to 1.0 (b) Effective Federal
Funds Rate Advance .68%
Equal to or (a) LIBOR Rate Advance .65%
less than (b) Effective Federal
3.0 to 1.0 Funds Rate Advance .83%
</TABLE>
The Applicable Margin shall be computed by the Agent on each
Calculation Date, and the Agent shall notify the Borrower and the
Banks of the Applicable Margin.
"Assignee" has the meaning specified in Section 10.08(a)
hereof.
"Assignment and Acceptance" has the meaning specified in
Section 10.08(a) hereof.
"Borrowing" means a revolving credit loan borrowing under
Section 2.01 hereof consisting of one Advance from each Bank, of the
same Type made on the same day.
"Business Day" means a day of the year on which banks are not
required or authorized to close in Houston, Texas and, if the
applicable Business Day relates to any LIBOR Rate Advances, on which
dealings are carried on in the London interbank market.
"Calculation Date" means (i) the Closing Date, and (ii) a date
which is the earlier of (A) the date of delivery of a Compliance
Certificate in accordance with Section 6.01(c), or (B) the date that
such Compliance Certificate is required to be delivered pursuant to
Section 6.01(c), and (C) with respect to a Rating Certificate, the
date of such Rating Certificate.
"Capital Shares" means, with respect to any Person, any
capital stock or capital shares (including without limitation,
preferred stock or shares), interests, participations or other
ownership interests (however designated) of such Person, and any
rights, warrants or options to purchase any thereof.
"Capitalized Lease" means any lease of any property (whether
real, personal or mixed) which, in conformity with GAAP, is accounted
for as a capital lease on the balance sheet of the lessee.
"Cash Equivalents" means (a) marketable direct obligations
issued or unconditionally guaranteed by the United States Government
or issued by an agency thereof or by the Federal
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National Mortgage Association; (b) commercial paper maturing no more
than ninety (90) days after the date of creation thereof and, at the
time of acquisition, having a rating of at least A-1 or P-1 from
either S&P or Moody's Investors Service, Inc. (or, if at any time
neither S&P nor Moody's Investors Service, Inc. shall be rating such
obligations, then the highest rating from such other nationally
recognized rating services acceptable to the Agent); (c) investments
in repurchase agreements backed by securities described in clause (a)
hereof; and (d) domestic and eurodollar certificates of deposit or
bankers' acceptances maturing within ninety (90) days after the date
of acquisition thereof issued by any Bank or any commercial bank
organized under the laws of the United States of America or any state
thereof or the District of Columbia having capital of not less than
$100,000,000.
"Closing Date" means the date the Agreement becomes effective
in accordance with Article IV.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor statute.
"Commitment" means, as to any Bank, such Bank's Pro Rata
Percentage of $150,000,000, as such amount may be reduced from time to
time pursuant to the terms and provisions hereof (including, without
limitation, during the Commitment Limitation Period in accordance with
Section 2.05(b)), and includes its Letter of Credit Commitment, and
"Commitments" means, collectively, the Commitments for all the Banks.
"Commitment Limitation Period" has the meaning specified in
Section 2.05(b).
"Compliance Certificate" has the meaning specified in Section
6.01(c).
"Consent Period" has the meaning specified in Section 2.11.
"Coverage Ratio" has the meaning specified in Section 7.07.
"Debt" of the Borrower or any Subsidiary means any
indebtedness of the Borrower, or any Subsidiary, whether or not
contingent, in respect of (without duplication)
(i) borrowed money, or obligations evidenced by bonds,
notes, debentures or similar instruments,
(ii) the portion of indebtedness secured by any Lien
existing on property owned by the Borrower or any Subsidiary,
(iii) the reimbursement obligations, contingent or
otherwise, in connection with any letters of credit or similar
instruments issued or confirmed by banks or other financial
institutions for the account of the Borrower or any Subsidiary,
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<PAGE> 11
(iv) amounts representing the balance deferred and unpaid
of the purchase price of any property or services (except any such
balance that constitutes trade payables) or conditional sale
obligations or obligations under any title retention agreement,
(v) the principal amount of all obligations of the
Borrower or any Subsidiary with respect to redemption, repayment or
other repurchase of any Disqualified Stock or,
(vi) obligations of the Borrower or any Subsidiary as
lessee under a Capitalized Lease; provided that the items of
indebtedness under (i), (ii), (iii) and (iv) above shall be deemed to
be Debt only to the extent that any such items (other than obligations
in respect of letters of credit) would appear as a quantified
liability on the Borrower's consolidated balance sheet in accordance
with GAAP (as distinguished from being referred to in the notes to
such Financial Statement); and
(vii) Guaranties.
The term "Debt" shall not include (x) contingent liabilities
relating to deposit and/or endorsement of checks in the ordinary course of
business of the Borrower or any Subsidiary; or (y) guaranties or contingent
liabilities under leases customarily undertaken or incurred by Borrower or any
Subsidiary in the ordinary course of business as either landlord or tenant.
The term "Debt" includes the Borrower's and Subsidiaries' share of debt of
partnerships and joint ventures (other than debt that is non-recourse to the
Borrower or its Subsidiaries) which are accounted for on the Borrower's
Financial Statements under the equity method of accounting.
"Debtor Laws" means all applicable liquidation,
conservatorship, bankruptcy, moratorium, arrangement, receivership,
insolvency, reorganization or similar laws or general equitable
principles from time to time in effect affecting the rights of
creditors generally.
"Default" means any event which, with the lapse of time or
giving of notice, or both, would constitute an Event of Default.
"Disqualified Stock" means, with respect to any Person, any
Capital Shares of such Person, which by the terms thereof (or by the
terms of any security or instrument into which such Capital Shares are
convertible or for which such Capital Shares are exchangeable or
exercisable) upon the happening of any event or otherwise, (i) mature
or are mandatorily redeemable, pursuant to a sinking fund obligation
or otherwise, (ii) are convertible into or exchangeable or exercisable
for Debt or Disqualified Stock, or (iii) are redeemable at the option
of the holder thereof, in whole or in part, in each case on a date
prior to the stated maturity of the Notes.
"Effective Federal Funds Rate" means the Federal Funds Rate,
plus the Applicable Margin.
"Effective Federal Funds Rate Advance" means an Advance which
bears interest at the Effective Federal Funds Rate as provided in
Section 2.06(b).
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"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"ERISA Affiliate" means any Subsidiary or trade or business
(whether or not incorporated) which is a member of a group of which
the Borrower is a member and which is under common control within the
meaning of Section 414 of the Code and the rules and regulations
thereunder.
"ERISA Event" means any of the following events: (a) a
"Reportable Event" described in Section 4043 of ERISA and the
regulations issued thereunder (other than a "Reportable Event" not
subject to the provisions for the 30-day notice to the PBGC under such
regulations), (b) the withdrawal of the Borrower from a PBGC Plan
during a plan year in which it was a "substantial employer" as defined
in Section 4001(a)(2) of ERISA or the incurrence of liability by the
Borrower under Section 4064 of ERISA, (c) the distribution of a notice
of intent to terminate a PBGC Plan pursuant to Section 4041(c) of
ERISA or the treatment of a PBGC Plan amendment as a termination under
Section 4041 of ERISA, (d) the institution of proceedings to terminate
a PBGC Plan by the PBGC, or (e) any other event or condition which
might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
PBGC Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Events of Default" has the meaning specified in Section 8.01.
"Existing TCB Debt" has the meaning specified in Section
4.01(i).
"Federal Funds Rate" means, as of any particular date, a
fluctuating interest rate per annum equal to the weighted average of
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day,
the average of the quotations for such day on such transactions
received by the Agent from three federal funds brokers of recognized
standing selected by it.
"Fees" means the Unused Borrowing Commitment Fee, the Letter
of Credit Fee and the Issuance Fee.
"Financial Statements" shall mean statements of the financial
condition of the Borrower and its Subsidiaries on a consolidated basis
as set forth in the Borrower's Annual Report on Form 10K for each
calendar year, or in the Borrower's Quarterly Report on Form 10-Q for
each quarterly accounting period, and filed with the Securities and
Exchange Commission, or if such filing is not permitted or required at
any time, financial statements in such form of the Borrower and its
Subsidiaries on a consolidated basis, delivered to the Agent and, in
such event, for quarterly financial statements, certified by a
Responsible Officer as presenting fairly the consolidated financial
position of the Borrower and its Subsidiaries as
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of the date indicated and the results of their operations for the
period indicated in conformity with GAAP, consistently applied,
subject to changes resulting from year-end adjustments, and for
year-end financial statements together with the unqualified opinion of
Deloitte & Touche, or other independent public accountants of
recognized national standing selected by the Borrower, stating that
such financial statements fairly present the consolidated financial
position of the Borrower and its Subsidiaries as of the date indicated
and the consolidated results of their operations and changes in
financial position for the period indicated in conformity with GAAP,
consistently applied.
"Funds from Operations" means for any Calculation Period, net
income of the Borrower and its Subsidiaries plus (i) each of the
following, to the extent actually deducted in arriving at such net
income during such period: (A) depreciation and amortization
expenses, (B) the amount accrued during such period in respect of
interest (including the interest component of Capitalized Lease
obligations) and original issue discount of Debt of the Borrower and
its Subsidiaries, and (C) extraordinary charges plus (ii) the excess,
if any, of the share of distributable funds allowable under any joint
venture or partnership which is not a Guarantor over net income from
such joint venture or partnership, minus (iii) each of the following
to the extent actually included in arriving at such net income during
such period: (x) gains on the sale or disposition of properties and
investment securities of the Borrower and its Subsidiaries, and (y)
the excess, if any, of net income from any joint venture or
partnership which is not a Guarantor, over the share of distributable
funds allowable under the applicable joint venture or partnership
agreement.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants, and
statements and pronouncements of the Financial Accounting Standards
Board.
"Governmental Authority" means any (domestic or foreign)
federal, state, county, municipal, parish, provincial, or other
government, or any department, commission, board, court, agency
(including, without limitation, the Environmental Protection Agency),
or any other instrumentality of any of them or any other political
subdivision thereof, and any entity exercising executive, legislative,
judicial, regulatory, or administrative functions of, or pertaining
to, government, including, without limitation, any arbitration panel,
any court, or any commission.
"Governmental Requirement" means any order, permit, law,
statute (including, without limitation, any statute enacted in
connection with or relating to the protection or regulation of the
environment), code, ordinance, rule, regulation, certificate, or other
direction or requirement of any Governmental Authority.
"Guarantor" means each Subsidiary which is a corporation, 100%
of the capital stock of which is owned by the Borrower, or a
Subsidiary, and that has executed a Guaranty Agreement, including
without limitation, each Guaranty Agreement executed in accordance
with Section 6.06 herein.
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"Guaranty" or "Guarantees" has the meaning specified in
Section 7.12, and does not include a "Guaranty Agreement", executed in
favor of the Banks in connection with this Agreement.
"Guaranty Agreement" means a Guaranty Agreement executed by
each Subsidiary substantially in the form of Exhibit 1.01, attached
hereto.
"Highest Lawful Rate" means, with respect to each Bank, the
maximum nonusurious interest rate, if any, that at any time or from
time to time may be contracted for, taken, reserved, charged, or
received with respect to any Note or on other amounts, if any, due to
such Bank pursuant to this Agreement or any other Loan Document under
laws applicable to such Bank which are presently in effect or, to the
extent allowed by law, under such applicable laws which may hereafter
be in effect.
"Interest Period" means, for each LIBOR Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Advance or the date of the conversion of any Advance into
such an Advance and ending on the last day of the period selected by
the Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be seven (7) days or one,
two or three months, as the Borrower may, upon notice received by the
Agent have selected in accordance with Section 2.02; provided however,
that:
(i) the duration of any Interest Period which
commences before any principal repayment date required
hereunder and would otherwise end (but for this provision)
after such date shall end on such date; and
(ii) whenever the last day of any Interest Period
would otherwise (but for this provision) occur on a day other
than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business
Day, provided, that, if such extension would cause the last
day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall
occur on the next preceding Business Day.
"Interest Rate Agreements" shall have the meaning specified
in Section 8.01(i).
"Investment" of any Person means any investment so classified
under GAAP, and, whether or not so classified, includes (a) any direct
or indirect loan or advance made by it to any other Person, whether by
means of stock purchase, loan, advance or otherwise, (b) any capital
contribution to any other Person, and (c) any ownership or similar
interest in any other Person.
"Issuing Bank" means TCB.
"Issuance Fee" has the meaning specified in Section 2.04(b).
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<PAGE> 15
"Letters of Credit" means the letters of credit provided for
in Section 2.01(b) hereof.
"Letter of Credit Commitment" means, as to any Bank, such
Bank's Pro Rata Percentage of $15,000,000, as such amount may be
reduced from time to time pursuant to the terms and provisions hereof,
and "Letter of Credit Commitments" means, collectively, the Letter of
Credit Commitments for all the Banks.
"Letter of Credit Fee" has the meaning specified in Section
2.04(b).
"Letter of Credit Request" has the meaning specified in
Section 2.03(a) hereof.
"LIBOR Rate" means, for any Interest Period for each LIBOR
Rate Advance, an interest rate per annum determined by the Agent to be
the average (rounded upward to the nearest whole multiple of 0.01% if
such average is not a multiple thereof) of the rate per annum at which
deposits in U.S. dollars are offered to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days prior
to the commencement of such Interest Period, in an amount
substantially equal to such LIBOR Rate Advance and for a period equal
to such Interest Period.
"LIBOR Rate Advance" means an Advance which bears interest at
the LIBOR Rate as provided in Section 2.06(a).
"LIBOR Rate Reserve Percentage" of any Bank for any Interest
Period for any LIBOR Rate Advance means the reserve percentage, if
any, applicable during such Interest Period (or if more than one such
percentage shall be so applicable, the daily average of such
percentages for those days in such Interest Period during which any
such percentage shall be so applicable) under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement, expressed as a percentage per annum) for
such Bank with respect to liabilities or assets consisting of or
including eurocurrency liabilities having a term equal to such
Interest Period.
"Lien" means any claim, mortgage, deed of trust, pledge,
security interest, encumbrance, lien, or charge of any kind
(including, without limitation, any agreement to give any of the
foregoing), any conditional sale or other title retention agreement,
or the interest of the lessor under any Capitalized Lease (but
otherwise excluding leases).
"Loan Documents" means this Agreement, the Notes, the Letters
of Credit, the Guaranty Agreements, and any document or instrument
executed in connection with the foregoing.
"Majority Banks" means at any time Banks holding at least 66
2/3% of the then aggregate unpaid principal amount of the Notes held
by Banks, or, if no such principal amount is then outstanding, Banks
having at least 66 2/3% of the Commitments.
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<PAGE> 16
"Margin Stock" shall have the meaning assigned to such term in
any of Regulation G, T, U or X.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making or accruing or has made or accrued an obligation
to make contributions.
"Net Proceeds" means with respect to the disposition of Real
Property of the Borrower permitted by Section 7.04 hereof, all
proceeds realized from such disposition after deducting: (i) any
withholding taxes arising from the disposition of assets located
outside of the United States; (ii) the ordinary and customary
out-of-pocket costs of such disposition; and (iii) amounts applied to
the repayment of Debt secured by Liens on such Real Property, to the
extent such Liens were not prohibited hereunder. "Net Proceeds" shall
also include proceeds of insurance with respect to an actual or
constructive loss of such property, an agreed or compromised loss of
such property or the taking of any such property under the power of
eminent domain and condemnation awards and awards in lieu of
condemnation for the taking of property under the power of eminent
domain.
"Non-Recourse Debt" of any Person means Debt of such Person in
respect of which (other than with respect to agreements in respect of
such Debt regarding the occurrence of certain wrongful acts or
misapplication of funds) (i) the recourse of the holder of such Debt,
whether direct or indirect and whether contingent or otherwise, is
effectively limited to the assets directly securing such Debt; and
(ii) such holder may not collect by levy of execution against assets
of such Person generally (other than the assets directly securing such
Debt) if such Person fails to pay such Debt when due and the holder
obtains a judgment with respect thereto.
"Note" or "Notes" has the meaning specified in Section 2.02(c).
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Interest Conversion" has the meaning specified in
Section 2.09.
"Obligations" means all of the obligations of the Borrower and
its Subsidiaries now or hereafter existing under the Loan Documents to
which it is a party, whether for principal, interest, fees, expenses,
indemnification or otherwise.
"Organizational Document" has the meaning set forth in Section
4.01(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Debt" means Debt which does not exceed the limits
specified in Section 7.02.
"Permitted Liens" means:
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<PAGE> 17
(a) non-consensual Liens imposed by operation of
law including, without limitation, Liens for taxes not yet delinquent,
landlord Liens for rent not yet due and payable, and Liens for
materialmen, mechanics, warehousemen, carriers, employees, workmen,
repairmen, current wages, or accounts payable not yet delinquent and
arising in the ordinary course of business; provided, however, that
any right to seizure, levy, attachment, sequestration, foreclosure, or
garnishment with respect to Property of the Borrower or any Subsidiary
by reason of such Lien has not matured, or has been, and continues to
be, effectively enjoined or stayed;
(b) easements, rights-of-way, restrictions, and
other similar Liens or imperfections to title which do not materially
interfere with the occupation, use, and enjoyment by the Borrower or
any Subsidiary of the Property encumbered thereby or materially impair
the value of such Property subject thereto for its intended purpose;
(c) Liens (other than any Lien imposed by ERISA)
incurred or deposits made in the ordinary course of business (i) in
connection with workers' compensation, unemployment insurance and
other types of social security, or (ii) to secure (or to obtain
letters of credit that secure) the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, performance or
payment bonds, purchase, construction or sales contracts and other
similar obligations, in each case not incurred or made in connection
with the borrowing of money, the obtaining of advances or credit or
the payment of the deferred purchase price of property; and
(d) UCC protective filings with respect to
personal property leased to the Borrower or any Subsidiary.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a
Governmental Authority.
"Plan" means any employee benefit plan within the meaning of
Section 3(3) of ERISA, other than a Multiemployer Plan, maintained by
the Borrower or any ERISA Affiliate.
"Property" means any interest or right in any kind of property
or asset, whether real, personal, or mixed, owned or leased, tangible
or intangible, and whether now held or hereafter acquired.
"Pro Rata Percentage" or "ratably" means as to any Bank a
fraction (expressed as a percentage) the numerator of which shall be
the aggregate original principal amount of such Bank's Note and the
denominator of which shall be $150,000,000.
"Rating Certificate" has the meaning specified in Section
6.01(h).
"Real Property" means all of the land, buildings, improvements
and projects under construction owned by the Borrower or any
Subsidiary, including without limitation all improvements thereon,
fixtures, and any leasehold or other interest in such property owned
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<PAGE> 18
or held by the Borrower or any Subsidiary, but excluding Property
under direct financing leases (as reflected on the balance sheet of
the Borrower).
"Register" has the meaning specified in subsection 10.08(c)
hereof.
"Regulation G," "Regulation T," "Regulation U" and "Regulation
X" means Regulation G, T, U or X, as the case may be, of the Board of
Governors of the Federal Reserve System, or any successor or other
regulation hereafter promulgated by said Board to replace the prior
Regulation G, T, U or X and having substantially the same function.
"Responsible Officer" means the chief financial officer or the
chief accounting officer of the Borrower.
"S&P" means Standard & Poor's Corporation.
"Series 1984 Bonds" has the meaning specified in Section
2.05(b).
"Subsidiary" shall mean (i) a corporation of which a
sufficient number of shares of stock having ordinary voting power
(other than stock having such power only by reason of the happening of
a contingency) to elect a majority of the board of directors of such
corporation are owned by the Borrower, or (ii) any partnership or
other business entity, with respect to which the Borrower or a
Guarantor owns an equity interest sufficient to exercise majority
voting power over management decisions. For purposes of clause (ii)
aforesaid, neither Borrower nor a Guarantor shall be deemed to own an
equity interest sufficient to exercise "majority voting power over
management decisions" if certain major decisions of such partnership
or other business entity (e.g., a decision to sell property) require
consent of Persons other than Borrower or Guarantor. For purposes of
this definition, Weingarten Properties, Inc., a Texas corporation,
shall not be deemed to be a Subsidiary.
"Termination Date" means November 21, 1997, or such later date
to which the Termination Date may be extended to pursuant to Section
2.11, or any earlier date on which (i) the Commitments have been
terminated in accordance with this Agreement (including, without
limitation, under Section 8.01 hereof), and (ii) all unpaid amounts
due and owing under the Notes have been paid in full.
"Total Assets" as of any date means the sum of (i) the
Undepreciated Real Estate Assets, and (ii) the aggregate book value of
all other assets of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP (after deducting therefrom
assets classified as "intangible assets" in accordance with GAAP.)
"Total Commitment" shall mean the sum of the Commitments in
effect under this Agreement from time to time.
"Type" refers to the determination whether an Advance is an
Effective Federal Funds Rate Advance or a LIBOR Rate Advance (or a
Borrowing comprised of such Advances).
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"UCP" has the meaning specified in Section 2.03(b).
"Undepreciated Real Estate Assets" as of any date means the
aggregate book value, before deduction for depreciation and
amortization, of Real Property assets of the Borrower and the
Subsidiaries, determined on a consolidated basis in accordance with
GAAP.
"Unimproved Real Property" shall mean Projects Under
Development, as reflected on the Financial Statements, less (i)
Construction in progress, and (ii) Capitalized interest in respect of
Construction in progress, and (iii) Capitalized interest on unimproved
land.
"Unused Borrowing Commitment Fee" has the meaning specified in
Section 2.04(a).
SECTION 1.02. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP
consistent with those applied in the preparation of the financial statements
referred to in Section 5.02.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES; LETTERS OF CREDIT
SECTION 2.01. The Revolving Credit Loan; Letters of Credit.
(a) Each Bank severally agrees, on the terms and conditions hereinafter set
forth, to make Advances on a revolving credit basis to the Borrower from time
to time on any Business Day during the period from the date hereof until the
Termination Date, in an aggregate amount not to exceed at any time outstanding
an amount equal to such Bank's Commitment; provided that, in no event shall the
ratable principal amount outstanding on all Advances made by any Bank, plus the
principal amount of such Bank's Pro Rata Percentage of Letters of Credit issued
and outstanding at any time (whether drawn or undrawn) exceed such Bank's
Commitment. Each Borrowing shall be in an aggregate amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
consist of Advances of the same Type made on the same day by the Banks ratably
according to their respective Commitments. Within the limits set forth herein,
the Borrower may borrow, prepay pursuant to Sections 3.02 and 3.03 and reborrow
under this Section 2.01. The principal amount outstanding of all Advances
shall mature and, together with accrued and unpaid interest thereon, shall be
due and payable on the Termination Date.
(b) The Issuing Bank agrees to issue Letters of Credit
upon the request of the Borrower for the account of the Borrower at any time
and from time to time on and after the Closing Date and up to, but excluding,
the earlier of the Termination Date and the termination of the Letter of Credit
Commitments or the Commitments, in accordance with the terms hereof. Each Bank
(other than the Issuing Bank) severally agrees, on the terms and conditions
hereinafter set forth, to purchase participations in the Letters of Credit
issued by the Issuing Bank pursuant to Section 2.03 in an aggregate amount not
to exceed such Bank's Letter of Credit Commitment; provided that, in no event
shall the principal amount of such Bank's Pro Rata Percentage of aggregate
Letters of Credit issued and outstanding at any time (whether drawn or
undrawn), plus the ratable principal amount on all outstanding Advances made by
such Bank, exceed such Bank's Commitment. On each day during
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<PAGE> 20
the period commencing with the issuance by the Issuing Bank of any Letter of
Credit and until such Letter of Credit shall have expired or been terminated,
and, irrespective of whether such Letter of Credit has expired or terminated,
if same has been drawn upon and the amount so drawn has not been reimbursed to
the Issuing Bank, the Commitment of each Bank shall be deemed to be utilized
for all purposes hereof in an amount equal to such Bank's Pro Rata Percentage
of the undrawn face amount of such Letter of Credit, plus such Bank's Pro Rata
Percentage of the aggregate amount of all unreimbursed drawings under such
Letter of Credit. Each Letter of Credit issued hereunder shall be in face
amount not less than $100,000.00.
SECTION 2.02. Making the Advances. (a) Each Borrowing
shall be made on the Borrower's written notice in the form set forth as Exhibit
2.02(a), attached hereto ("Notice of Borrowing") or oral notice (containing the
information required in a Notice of Borrowing) given by the Borrower to the
Agent not later than 10:00 A.M. (Houston, Texas time) (i) on the third Business
Day prior to the date of the proposed Borrowing in the case of a LIBOR Rate
Advance, and (ii) on the same Business Day of the proposed Borrowing in the
case of a Effective Federal Funds Rate Advance (to the extent permitted under
Section 2.06(b)). With respect to any oral Notice of Borrowing, the Borrower
shall promptly thereafter confirm such notice in writing. Each Notice of
Borrowing shall specify therein the requested (i) date of such Borrowing, (ii)
Type of Advances comprising such Borrowing, (iii) aggregate amount of such
Borrowing, and (iv) in the case of a Borrowing comprised of LIBOR Rate
Advances, the initial Interest Period for each such Advance; provided that,
there shall not be more than two (2) Interest Periods for a period of seven (7)
days in effect at any one time with respect to any Note, and no more than seven
(7) Interest Periods in effect in the aggregate at any one time with respect to
any Note. The Agent shall promptly deliver a copy of each Notice of Borrowing
to each Bank. Each Bank shall, before 11:00 A.M. (Houston time) on the date of
such Borrowing, make available to the Agent at its address referred to in
Section 10.02, in immediately available funds, such Bank's ratable portion of
such Borrowing. After the Agent's receipt from the Banks (other than TCB) of
such funds (and not prior thereto), and upon fulfillment of the applicable
conditions set forth in Article IV, the Agent will promptly make such funds
available to the Borrower at the Agent's aforesaid address. Each Notice of
Borrowing shall be irrevocable and binding on the Borrower.
(b) In the event that TCB shall have purchased one or
more Series 1984 Bonds from one or more holders of such bonds during the
Commitment Limitation Period, and shall remain a holder of such bonds on the
last day of such Commitment Limitation Period, the Borrower hereby agrees that,
notwithstanding any other provision of this Agreement, including without
limitation, the conditions set forth in Article IV or the existence of a
Default or Event of Default at such time, the Borrower will, at 9:00 A.M. on
and as of such date, without further action automatically be deemed to have
requested a Borrowing under Section 2.02(a) of this Agreement for an Advance in
an aggregate amount equal to the purchase price paid by TCB for all such bonds,
plus accrued and unpaid interest thereon since the date of such purchase, and
any other amounts due thereunder at such time, bearing interest at the
Effective Federal Funds Rate, with a date of Borrowing on and as of such date.
The Agent shall promptly notify each Bank of the occurrence of such Borrowing.
Each Bank shall, before 11:00 A.M. (Houston time) on the date of such Borrowing
make available to the Agent at its address referred to in Section 10.02, in
immediately available funds, such Bank's ratable portion of such Borrowing.
After the Agent's receipt from the Banks (other than TCB) of such funds and
notwithstanding the conditions set forth in Article IV or the existence of a
Default or event of Default
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<PAGE> 21
at such time, the Agent will promptly pay such funds to TCB, on behalf of and
for the account of the Borrower, in consideration of and in exchange for such
bonds; the bonds will thereupon be owned by the Borrower, and TCB will deliver
the bonds to the Borrower. The Borrower and each Bank hereby agrees that the
Advance and the Borrowing, contemplated under this Section 2.02(b), the
obligation of each Bank to fund such Borrowing and of the Borrower to repay
such Advance on or prior to the Termination Date, and the right of TCB to
receive such funds in consideration of and exchange for the Bonds, is absolute
and unconditional.
(c) The failure of any Bank to make an Advance to be made
by it as part of any Borrowing shall not relieve any other Bank of its
obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Bank shall be responsible for the failure of any other Bank
to make the Advance to be made by such other Bank on the date of any Borrowing.
(d) The Borrower shall execute and deliver for each Bank
to evidence the Advances made by such Bank pursuant to Section 2.01 or 2.02(b)
hereof, a revolving credit note (each such note a "Note" and more than one
Note, the "Notes") in the amount of such Bank's Commitment. Each Note shall be
substantially in the form of Exhibit 2.02(d) with the blanks appropriately
filled, and shall mature on the Termination Date.
SECTION 2.03. Issuing the Letters of Credit. (a) In order
to effect the issuance of a Letter of Credit, the Borrower shall submit a
Letter of Credit Request and a Letter of Credit Application in writing to the
Agent (who shall promptly notify the Issuing Bank) not later than 11:00 a.m.
(Houston, Texas time) two (2) Business Days before the date of issuance of such
Letter of Credit. Each such Letter of Credit Request and Letter of Credit
Application shall be signed by the Borrower, specify the Business Day on which
such Letter of Credit is to be issued, and, the availability for Letters of
Credit under the Letter of Credit Commitment and the Commitment as of the date
of issuance of such Letter of Credit; provided that, without the consent of all
Banks, the expiration date thereof shall not be later than the earlier of (i)
thirty (30) months from the date of issuance of such Letter of Credit and (ii)
five (5) Business Days prior to the Termination Date.
(b) Upon satisfaction of the applicable terms and
conditions set forth in Article IV, the Issuing Bank shall issue such Letter of
Credit to the specified beneficiary not later than the close of business
(Houston, Texas time) on the date so specified. The Agent shall provide the
Borrower and each Bank with a copy of each Letter of Credit so issued. Each
such Letter of Credit shall (i) provide for the payment of drafts presented for
honor thereunder by the beneficiary in accordance with the terms thereof, at
sight when accompanied by the documents, if any, described therein and (ii) BE
SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (JANUARY 1,
1994 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. ___, (AND ANY
SUBSEQUENT REVISIONS THEREOF APPROVED BY A CONGRESS OF THE INTERNATIONAL
CHAMBER OF COMMERCE AND ADHERED TO BY THE ISSUING BANK) (THE "UCP") AND SHALL,
AS TO MATTERS NOT GOVERNED BY THE UCP, BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
(c) Upon the issuance date of each Letter of Credit, the
Issuing Bank shall be deemed, without further action by any party hereto, to
have sold to each other Bank, and each other Bank shall be deemed, without
further action by any party hereto, to have purchased from the Issuing
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<PAGE> 22
Bank, a participation, to the extent of such Bank's Pro Rata Percentage, in
such Letter of Credit, the obligations thereunder and in the reimbursement
obligations of Borrower due in respect of drawings made under such Letter of
Credit. If requested by the Issuing Bank, the other Banks will execute any
other documents reasonably requested by the Issuing Bank to evidence the
purchase of such participation.
(d) Upon the presentment of any draft for honor under any
Letter of Credit by the beneficiary thereof which the Issuing Bank determines
is in compliance with the conditions for payment thereunder, the Issuing Bank
shall promptly notify the Borrower, the Agent and each Bank of the intended
date of honor of such draft, and the Borrower hereby promises and agrees to pay
to the Agent for the account of the Issuing Bank upon receipt of such notice,
by 9:00 A.M. (Houston, Texas time) on the date payment is due as specified in
such notice but in any event, no earlier than the Business Day after receipt of
such notice, the full amount of such draft in immediately available funds
(unless honor of such draft has been enjoined by a court of competent
jurisdiction pursuant to Section 5.114 of the Texas Business and Commerce Code
prior to its payment by the Issuing Bank). If the Borrower fails timely to
make such payment, each Bank shall, notwithstanding any other provision of this
Agreement (including the occurrence and continuance of a Default or an Event of
Default), make available to the Agent for the benefit of the Issuing Bank an
amount equal to its Pro Rata Percentage of the amount of the presented draft on
the day the Issuing Bank is required to honor such draft. If such amount is
not in fact made available to the Agent by any such Bank on such date, then
such Bank shall pay to the Agent for the account of the Issuing Bank, on demand
made by the Issuing Bank, in addition to such amount, an amount equal to the
product of (i) the average daily Effective Federal Funds Rate per annum during
the period referred to in clause (iii) of this sentence times (ii) the amount
of such Bank's Pro Rata Percentage of the amount of the presented draft times
(iii) the number of days that elapse from the day the Issuing Bank honors such
draft to the date on which the amount equal to such Bank's Pro Rata Percentage
of the amount of the presented draft becomes immediately available to the
Issuing Bank divided (iv) by 360. Upon receipt by the Agent from the Banks of
the full amount of such draft, notwithstanding any other provision of this
Agreement (including the occurrence and continuance of a Default or an Event of
Default) the full amount of such draft shall automatically and without any
action by the Borrower, be deemed to have been an Advance as of the date of
payment of such draft, bearing interest at a rate per annum equal at all times
to the lesser of (i) two percent (2%) per annum above the Effective Federal
Funds Rate, and (ii) the Highest Lawful Rate. Nothing in this paragraph (d) or
elsewhere in this Agreement shall diminish the Borrower's obligation under this
Agreement to provide the funds for the payment of, or on demand to reimburse
the Issuing Bank for payment of, any draft presented to, and duly honored by,
the Issuing Bank under any Letter of Credit, and the automatic funding of an
Advance as in this paragraph provided shall not constitute a cure or waiver of
the Event of Default for failure, timely to provide such funds as in this
paragraph agreed.
(e) IN ORDER TO INDUCE THE ISSUANCE OF LETTERS OF CREDIT
BY THE ISSUING BANK AND THE PURCHASE OF PARTICIPATIONS THEREIN BY THE OTHER
BANKS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, THE BORROWER AGREES WITH
THE AGENT, THE ISSUING BANK AND THE OTHER BANKS THAT NEITHER THE AGENT NOR ANY
BANK (INCLUDING THE ISSUING BANK) SHALL BE RESPONSIBLE OR LIABLE FOR, AND
BORROWER'S UNCONDITIONAL OBLIGATION TO REIMBURSE THE ISSUING BANK THROUGH
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<PAGE> 23
THE AGENT FOR AMOUNTS PAID BY THE ISSUING BANK, AS PROVIDED IN SECTION 2.03(D),
ON ACCOUNT OF DRAFTS SO HONORED UNDER THE LETTERS OF CREDIT, SHALL NOT BE
AFFECTED BY, ANY CIRCUMSTANCE, ACT OR OMISSION WHATSOEVER (WHETHER OR NOT KNOWN
TO THE AGENT OR ANY BANK (INCLUDING THE ISSUING BANK) OTHER THAN A
CIRCUMSTANCE, ACT OR OMISSION RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF THE AGENT OR ANY BANK IN DETERMINING WHETHER SUCH DRAW CONFORMS
TO THE TERMS OF THE LETTER OF CREDIT BUT EXPRESSLY INCLUDING A CIRCUMSTANCE,
ACT OR OMISSION CONSTITUTING ORDINARY SOLE OR CONTRIBUTING NEGLIGENCE),
INCLUDING WITHOUT LIMITATION THE FOLLOWING CIRCUMSTANCES):
(i) any lack of validity or enforceability of
this Agreement or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense
or other right which the Borrower or any Subsidiary may have
at any time against a beneficiary named in a Letter of Credit,
any transferee of any Letter of Credit (or any person for whom
any such transferee may be acting), any Agent, the Issuing
Bank, any Bank, or any other person, whether in connection
with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including
any underlying transaction between the Borrower or any other
party and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security
for the performance or observance of any of the terms of any
of the Loan Documents;
(v) the occurrence of any Default or Event of
Default; or
(vi) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the
Borrower or any Guarantor.
The Borrower hereby waives presentment for payment (except the
presentment required by the terms of any Letter of Credit) and notice of
dishonor, protest and notice of protest with respect to drafts honored under
the Letters of Credit. The Issuing Bank agrees promptly to notify the Borrower
whenever a draft is presented under any Letter of Credit, but failure to so
notify the Borrower shall not in any way affect the Borrower's rights or
obligations hereunder.
(f) IN DETERMINING WHETHER TO PAY UNDER ANY LETTER OF
CREDIT, THE ISSUING BANK SHALL HAVE NO OBLIGATION RELATIVE TO THE AGENT OR THE
BANKS OTHER THAN TO CONFIRM THAT ANY DOCUMENTS REQUIRED TO BE DELIVERED UNDER
SUCH LETTER OF CREDIT APPEAR TO
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<PAGE> 24
HAVE BEEN DELIVERED AND THAT THEY APPEAR TO COMPLY ON THEIR FACE WITH THE
REQUIREMENTS OF SUCH LETTER OF CREDIT. ANY ACTION TAKEN OR OMITTED TO BE TAKEN
BY THE ISSUING BANK UNDER OR IN CONNECTION WITH ANY LETTER OF CREDIT IF TAKEN
OR OMITTED IN THE ABSENCE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT IN
DETERMINING WHETHER SUCH DRAW CONFORMS TO THE TERMS OF THE LETTER OF CREDIT IN
COMPLIANCE WITH REQUIREMENT OF SECTION 5.109 OF THE TEXAS BUSINESS AND COMMERCE
CODE, SHALL NOT CREATE FOR THE ISSUING BANK ANY RESULTING LIABILITY TO ANY
AGENT OR ANY BANK. IT IS THE INTENT OF THE PARTIES HERETO THAT THE ISSUING
BANK SHALL HAVE NO LIABILITY TO THE AGENT OR BANK FOR ITS ORDINARY SOLE OR
CONTRIBUTING NEGLIGENCE.
(g) In the event that any provision of a Letter of Credit
Application is inconsistent with, or in conflict of, any provision of this
Agreement, including provisions of either document for the rate of interest
applicable to drawings thereunder, delivery of collateral or rights of setoff
or any representations, warranties, covenants or any events of default set
forth therein, the provisions of this Agreement shall govern.
SECTION 2.04. Fees. (a) The Borrower agrees to pay to the
Agent for the account of each Bank a commitment fee (the "Unused Borrowing
Commitment Fee") on the average daily unused portion of such respective Bank's
Commitment from the date hereof until the Termination Date, at the rate per
annum indicated below for the credit rating (or implied credit rating, as the
case may be) assigned to long-term, senior unsecured Debt of the Borrower by
S&P, as reflected on the most recent Compliance Certificate of the Borrower
delivered in accordance with Section 6.01(c), or the most recent Rating
Certificate delivered in accordance with Section 6.01(h), as the case may be,
and shall become effective on the applicable Calculation Date, and shall remain
in effect to (but not including) the next Calculation Date, payable quarterly
in arrears on the first day of each calendar quarter for the prior calendar
quarter during the term of such Bank's Commitment, commencing on the date of
this Agreement, and continuing until the Termination Date:
<TABLE>
<CAPTION>
If the credit rating (or implied
credit rating) determined on any The Unused Borrowing
Calculation Date is: Commitment Fee is:
-------------------------------- --------------------
<S> <C>
AA- or better .15%
A+, A or A- .20%
BBB+, BBB, BBB- .25%
BB+ and below .30%
</TABLE>
; provided that, if at any time no such credit rating (or implied credit
rating, as the case may be) shall be assigned to (or in respect of) long-term,
senior unsecured Debt of the Borrower by S&P, the Unused Borrowing Commitment
Fee shall mean the rate per annum indicated below for the Coverage Ratio in
effect, as reflected on the most recent Compliance Certificate of the Borrower
delivered to the Agent in accordance with Section 6.01(c), or the most recent
Rating Certificate delivered in
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<PAGE> 25
accordance with Section 6.01(h), as the case may be, and shall become effective
on the applicable Calculation Date, and shall remain in effect to (but not
including) the next Calculation Date, payable as set forth above.
<TABLE>
<CAPTION>
If the Coverage Ratio The Unused
determined on any Borrowing Commitment
Calculation Date is: Fee is:
--------------------- --------------------
<S> <C>
Greater than
3.0 to 1.0 .20%
Equal to or
less than
3.0 to 1.0 .25%
</TABLE>
The Unused Borrowing Commitment Fee shall be calculated by the Agent on each
Calculation Date, and the Agent shall notify the Borrower and the Banks of the
applicable Fee.
(b) The Borrower agrees to pay to the Issuing Bank for
the issuance of each Letter of Credit, an issuance fee ("Issuance Fee") in an
amount equal to one-eighth of one percent (1/8 of 1%) of the face amount of
each Letter of Credit. The Borrower further agrees to pay to each Bank
(including the Issuing Bank) for the issuance, or purchase of participations
in, and maintenance of each Letter of Credit, a letter of credit fee (the
"Letter of Credit Fee"), in an amount equal to such Bank's Pro Rata Percentage
of one-half of one percent (1/2 of 1%) per annum of the undrawn face amount of
each Letter of Credit, from the date of issuance thereof to the date on which
such Letter of Credit expires or terminates. The Issuance Fee shall be payable
in full in advance of the issuance of such Letter of Credit. The Letter of
Credit Fee shall be payable quarterly in arrears on the first day of each
calendar quarter for the prior calendar quarter commencing on the date of
issuance of each Letter of Credit.
(c) The Fees payable under Sections 2.03(a) and (b) shall
be calculated by the Agent on the basis of a 365 or 366 day year, as the case
may be, for the actual days (including the first day but excluding the last
day) occurring in the period for which such fee is payable. Each determination
by the Agent under this Section 2.04 shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.05. Reduction of the Commitments. (a) The
Borrower shall have the right, upon at least three (3) Business Days' notice to
the Agent, to terminate in whole or reduce ratably in part the unused portions
of the Commitments or the Letter of Credit Commitments of the Banks, provided
that each partial reduction shall be in the aggregate amount of $5,000,000 or
an integral multiple thereafter of $1,000,000; and further provided that, the
Letter of Credit Commitments may never be reduced below an amount equal to the
aggregate undrawn face amount of Letters of Credit issued and outstanding at
any time.
(b) In the event that on any Business Day from and after
the Closing Date to and including January 31, 1995 (the "Commitment Limitation
Period") TCB shall have notified the
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<PAGE> 26
Borrower, the other Banks and the Agent in writing that it has agreed to
purchase certain of the Industrial Development Revenue Bonds, Series 1984
(Weingarten Realty, Inc. Project) (the "Series 1984 Bonds"), issued by The
Industrial Development Board of the Parish of Lafayette, Louisiana, Inc. (the
"Issuer") pursuant to a Mortgage and Indenture of Trust dated as of December
15, 1984 by and between the Issuer and Guaranty Bank and Trust Company, Trustee
thereunder, then, in such event, the Commitment of each Bank shall
automatically be reduced (without further action) during such Commitment
Limitation Period by an amount equal to such Bank's Pro Rata Percentage of
$3,500,000, and the Total Commitment shall be reduced during such Commitment
Limitation Period by an amount equal to $3,500,000; provided that, on the day
that a Letter of Credit has been issued to the Trustee under the Indenture,
which is acceptable to TCB, in its individual capacity as an owner of any
Series 1984 Bond, if applicable, and as Agent hereunder, the Commitment of each
Bank and the Total Commitment shall each automatically be increased (without
further action) by the amount of such prior reduction. The Agent agrees to
provide notice to the Banks upon the occurrence of such event.
SECTION 2.06. Interest. Each Advance shall bear interest
at the rates set forth below, and the Borrower shall pay interest on the unpaid
principal amount of each Advance made by each Bank from the date of such
Advance until such principal amount shall be paid in full, at the times and at
the rates per annum set forth below:
(a) LIBOR Rate Advances. During such periods as such
Advance is a LIBOR Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the lesser of (i) the sum of the LIBOR
Rate for such Interest Period for such Advance plus the Applicable Margin and
(ii) the Highest Lawful Rate, payable, together with additional interest due
under Section 2.07 hereof, if any, quarterly in arrears on the first day of
each calendar quarter, commencing with the calendar quarter following the
calendar quarter in which the date of this Agreement occurs, and on the
Termination Date; provided that, any amount of principal which is not paid when
due (whether at stated maturity, by acceleration or otherwise) shall bear
interest, from the date on which such amount is due until such amount is paid
in full, payable on demand, at a rate per annum equal at all times to the
lesser of (i) two percent (2%) per annum above the Effective Federal Funds Rate
in effect from time to time and (ii) the Highest Lawful Rate.
(b) Effective Federal Funds Rate Advances. During such
periods as such Advance is an Effective Federal Funds Rate Advance, a rate per
annum equal at all times to the lesser of (i) the Effective Federal Funds Rate
and (ii) the Highest Lawful Rate, payable quarterly in arrears on the first day
of each calendar quarter, commencing with the calendar quarter following the
calendar quarter in which the date of this Agreement occurs, and on the
Termination Date; provided that the Borrower may only elect an Effective
Federal Funds Rate Advance (A) during a period for which the Borrower has been
notified in accordance with Sections 2.08(b) or (d) that a LIBOR Rate Advance
shall not be available to the Borrower or (B) with respect to such Bank's Pro
Rata Percentage of an Advance after the Borrower has received a demand for
compensation pursuant to Sections 3.04(a) or (b), or pursuant to Section 2.07,
and then, only for such period as such compensation shall be required; further
provided that, any amount of principal which is not paid when due (whether at
stated maturity, by acceleration or otherwise) shall bear interest, from the
date on which such amount is due until such amount is paid in full, payable on
demand, at a rate per annum equal at all times to the lesser of
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<PAGE> 27
(i) two percent (2%) per annum above the Effective Federal Funds Rate in effect
from time to time and (ii) the Highest Lawful Rate.
(c) All computations of interest hereunder at the
Effective Federal Funds Rate pursuant to this Article II shall be made by the
Agent on the basis of a year of 365 or 366 days, as the case may be, and all
computations of interest hereunder at the LIBOR Rate (plus the Applicable
Margin) pursuant to this Article II shall be made by the Agent on the basis of
a year of 360 days (but if a 360 day calculation would result in a rate in
excess of the Highest Lawful Rate, then based on a year of 365 or 366 days, as
the case may be), in each case (whether for a LIBOR Rate Advance or an
Effective Federal Funds Rate Advance) for the actual number of days (including
the first day but excluding the last day) occurring in the period for which
such interest is payable. Each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.07. Additional Interest on LIBOR Rate Advances.
Subject to Section 10.09 hereof, the Borrower shall pay to each Bank, at such
time as and so long as such Bank shall be required under regulations of the
Board of Governors of the Federal Reserve System to maintain reserves with
respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each Advance
of such Bank during such periods as such Advance is a LIBOR Rate Advance, from
the date of such Advance until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder obtained by
subtracting (i) the LIBOR Rate for such Interest Period for such LIBOR Rate
Advance from (ii) the rate obtained by dividing such LIBOR Rate by a percentage
equal to 100% minus the LIBOR Rate Reserve Percentage of such Bank for such
Interest Period, payable on each date on which interest is payable on such
LIBOR Rate Advance pursuant to Section 2.06(a) hereof. Such additional
interest shall be determined by such Bank (subject to Section 10.09) and
notified to the Borrower through the Agent, and each such notification shall be
conclusive absent manifest error.
SECTION 2.08. Interest Rate Determination and Protection.
(a) The rate of interest for each LIBOR Rate Advance specified in a Notice of
Borrowing or a Notice of Interest Conversion, shall be determined by the Agent
two (2) Business Days before the first day of the Interest Period applicable
for such Advance. The Agent shall give prompt notice to the Borrower and the
Banks of the applicable interest rate determined by the Agent for purposes of
Section 2.06(a) hereof, and each such determination by the Agent shall be
conclusive, absent manifest error.
(b) If, with respect to any LIBOR Rate Advances, the
Majority Banks notify the Agent that the LIBOR Rate (plus the Applicable
Margin) for any Interest Period for such Advances will not adequately reflect
the cost to such Majority Banks of making, funding or maintaining their
respective LIBOR Rate Advances for such Interest Period, the Agent shall
forthwith promptly so notify the Borrower and the Banks, whereupon;
(i) each LIBOR Rate Advance, which has been
effected, will automatically, on the last day of the then
existing Interest Period therefor, convert into an Effective
Federal Funds Rate Advance, and
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<PAGE> 28
(ii) the obligation of the Banks to make, or to
convert Advances into, LIBOR Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Banks that
the circumstances causing such suspension no longer exist.
(c) If the Borrower shall fail to deliver to the Agent a
Notice of Interest Conversion in accordance with Section 2.09 hereof or to
select the duration of any subsequent Interest Period for the principal amount
outstanding under any LIBOR Rate Advance prior to the last day of the Interest
Period applicable to such Advance, the Agent will forthwith so notify the
Borrower and the Banks, and such Advances will automatically, on the last day
of the then existing Interest Period therefor, convert into LIBOR Rate Advances
at the LIBOR Rate in effect two Business Days prior to such date for an
Interest Period of one month, plus the Applicable Margin.
(d) Notwithstanding any other provision of this
Agreement, if any Bank shall notify the Agent that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other governmental authority asserts that it is
unlawful, for any Bank to perform its obligations hereunder to make LIBOR Rate
Advances or to fund or maintain LIBOR Rate Advances hereunder, (i) the
obligation of such Bank to make, or to convert Advances into, LIBOR Rate
Advances shall be suspended until such Bank shall notify the Borrower and the
Agent that the circumstances causing such suspension no longer exist and (ii)
the Borrower shall forthwith prepay in full all LIBOR Rate Advances of such
affected Bank then outstanding, unless the Borrower, within two (2) Business
Days of notice from the Agent, converts all LIBOR Rate Advances of such Bank
then outstanding into Effective Federal Funds Rate Advances in accordance with
Section 2.09.
SECTION 2.09. Voluntary Interest Conversion of Advances.
The Borrower may on any Business Day, upon the Borrower's written notice in the
form set forth as Exhibit 2.09 attached hereto ("Notice of Interest
Conversion"), or oral notice (containing the information requested in a Notice
of Interest Conversion) given to the Agent not later than 10:00 A.M. (Houston,
Texas time) on the third (3rd) Business Day prior to the date of the proposed
interest conversion in the case of a LIBOR Rate Advance, (i) convert all such
LIBOR Rate Advances into an Effective Federal Funds Rate Advances or (ii)
convert all LIBOR Rate Advances for a specified Interest Period into LIBOR Rate
Advances for a different Interest Period; provided however, with respect to any
oral Notice of Interest Conversion, the Borrower shall promptly confirm such
notice in writing; provided further that, any conversion of any LIBOR Rate
Advances into an Effective Federal Funds Rate Advance or a different Interest
Period shall be made on, and only on, the last day of an Interest Period for
such LIBOR Rate Advances (unless the provisions of Sections 2.07, 2.08(d) or
3.04 apply), and; provided further that the Borrower may convert an Advance
into an Effective Federal Funds Rate Advance only if (i) the Borrower has been
notified in accordance with Section 2.08(b) or (d) that a LIBOR Rate Advance is
not available at such time to the Borrower or if (ii) additional interest
becomes due under Section 2.07, or additional amounts become due under Section
3.04. Each such Notice of Interest Conversion shall specify therein (i) the
requested date of such interest conversion, (ii) the Advances to be converted
and (iii) if such interest conversion is into Advances constituting LIBOR Rate
Advances, the duration of the Interest Period for each such Advance. The Agent
shall promptly deliver a copy of each Notice of Interest Conversion to each
Bank. Each Notice of Interest Conversion shall be irrevocable and binding on
the Borrower.
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<PAGE> 29
SECTION 2.10. Funding Losses Relating to LIBOR Rate
Advances. (a) If any payment of principal of, or interest conversion of, any
LIBOR Rate Advance is made other than on the last day of an Interest Period
relating to such Advance, as a result of a conversion pursuant to Section 2.09,
or a payment pursuant to Sections 3.02, 3.03, or acceleration of the maturity
of any Note in accordance with the terms hereof, or for any other reason, the
Borrower shall, upon demand by the Agent or any Bank (with a copy of such
demand to the Agent), pay to the Agent for the account of such Bank any amounts
required to compensate such Bank for any additional losses, costs, or expenses
which it may reasonably incur as a result of such payment or interest
conversion, including, without limitation, any loss, cost, or expense incurred
by reason of the liquidation or reemployment of the amounts so prepaid or of
deposits or other funds acquired by such Bank to fund or maintain such Advance.
Each Bank requesting compensation under this Section 2.10 shall deliver to the
Borrower (with a copy to the Agent) a certificate of such Bank setting forth
the calculation of such amounts with reasonable specificity and such
certificate shall be conclusive, absent manifest error.
(b) IN THE CASE OF ANY BORROWING, THE BORROWER SHALL
INDEMNIFY EACH BANK AGAINST ANY LOSS, COST, OR EXPENSE INCURRED BY SUCH BANK AS
A RESULT OF ANY FAILURE OF THE BORROWER TO FULFILL ON OR BEFORE THE DATE
SPECIFIED IN A NOTICE OF BORROWING THE APPLICABLE CONDITIONS SET FORTH IN
ARTICLE IV, INCLUDING, WITHOUT LIMITATION, ANY LOSS, COST, OR EXPENSE INCURRED
BY REASON OF THE LIQUIDATION OR REEMPLOYMENT OF THE AMOUNTS SO PREPAID OR OF
DEPOSITS OR OTHER FUNDS ACQUIRED BY SUCH BANK TO FUND THE ADVANCE TO BE MADE BY
SUCH BANK AS PART OF SUCH BORROWING WHEN SUCH ADVANCE, AS A RESULT OF SUCH
FAILURE, IS NOT MADE ON SUCH DATE.
(c) Any Bank demanding payment under this Section 2.10
shall deliver to the Borrower and the Agent a statement reasonably setting
forth the amount and manner of determining such loss, cost, or expense, which
statement shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.11. Extension of Commitments. The Commitments
(including the Letter of Credit Commitments) shall terminate on November 21,
1997, unless on a Business Day which is at least ninety (90) days (but no more
than one hundred fifty (150) days) prior to the applicable Annual Date, the
Agent shall have received notice in writing from the Borrower of its desire to
extend the Termination Date to a date which is the anniversary of such then
current Termination Date in the year immediately succeeding the year in which
the Termination Date is then scheduled to occur, and upon consent in writing
given to the Agent and the Borrower by each Bank on or prior to a date which is
thirty (30) days before the applicable Annual Date (such period ending on such
date, the "Consent Period"), the Termination Date shall be extended to such
requested date, whereupon the Commitments (including the Letter of Credit
Commitments) shall continue in force and effect until such new Termination
Date, on the terms and conditions set forth in this Agreement, as hereafter
amended from time to time. If any Bank does not consent to the extension of
the Termination Date pursuant to this Section 2.11 (which determination shall
be made by each Bank in its sole discretion), all of the Commitments (including
the Letter of Credit Commitments) shall terminate on the Termination Date in
effect prior to the request for extension.
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<PAGE> 30
ARTICLE III
PAYMENTS, PREPAYMENTS
INCREASED COSTS AND TAXES
SECTION 3.01. Payments and Computations. (a) The Borrower
shall make each payment under this Agreement and under the Notes or in
connection with the Letters of Credit not later than 10:00 A.M. (Houston time)
on the day when due in U.S. dollars to the Agent at its address referred to in
Section 10.02 in immediately available funds. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest or commitment fees (to the extent received by the Agent)
ratably to the Banks, and like funds relating to the payment of any other
amount payable to any Bank (to the extent received by the Agent) to such Bank
in each case to be applied in accordance with the terms of this Agreement.
(b) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest or
fee, as the case may be; provided however, if such extension would cause
payment of interest on or principal of LIBOR Rate Advances to be made in the
next following calendar month, such payment shall be made on the next preceding
Business Day; further provided that, the foregoing shall not obligate the
Borrower to pay amounts under Section 2.10.
(c) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks hereunder
that the Borrower will not make such payment in full, the Agent may assume that
the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank. If and
to the extent the Borrower shall not have so made such payment in full to the
Agent, each Bank shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each day from the
date such amount is distributed to such Bank until the date such Bank repays
such amount to the Agent, at the lesser of (i) the Effective Federal Funds Rate
or (ii) the Highest Lawful Rate.
SECTION 3.02. Voluntary Prepayments. Subject to Section
2.10, the Borrower may, upon notice delivered to the Agent prior to 11:00 A.M.
(Houston, Texas time) on any Business Day stating the aggregate principal
amount of the prepayment and the Advances to be prepaid, prepay the outstanding
principal amounts of such Advances comprising part of the same Borrowing in
whole or ratably in part, provided however, that all such prepayments shall be
made without premium or penalty thereon; and provided further that, losses
incurred by any Bank under Section 2.10 shall be payable with respect to each
such prepayment. Such notice shall be irrevocable and the payment amount
specified in such notice shall be due and payable on the prepayment date
described in such notice. Partial prepayments with respect to any Advance
shall be in an aggregate principal amount equal to the lesser of (a) $1,000,000
or in greater integral multiples of $1,000,000, or (b) the aggregate principal
amount of Advances of such Bank outstanding. In the event that the Borrower
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<PAGE> 31
fails to notify the Agent as to which Advance is to be prepaid, the partial
prepayments shall be applied in the order of the next succeeding expiration of
outstanding Interest Periods.
SECTION 3.03. Mandatory Prepayments. (a) Within the time
period specified in Section 7.04, the Borrower shall deliver to the Agent, as a
prepayment on the Notes, an amount equal to the Adjusted Net Proceeds of a
disposition of Real Property of the Borrower or any Subsidiary permitted under
Section 7.04. Upon receipt of such amount, the Agent shall promptly deliver to
each Bank, to the extent required under Section 7.04, its Pro Rata Percentage
of such prepayment. Upon the date on which a prepayment is required under
Section 7.04, the Commitment of each Bank shall be permanently reduced in an
amount equal to such Bank's Pro Rata Percentage of such Adjusted Net Proceeds.
(b) If at any time the sum of (i) the principal balance
outstanding on the Notes, and (ii) the aggregate undrawn face amount of Letters
of Credit issued and outstanding at such time, exceeds the Total Commitment
then in effect, the Borrower shall immediately pay to the Agent as a prepayment
on the Notes for the ratable account of each Bank the amount of such excess.
SECTION 3.04. Increased Costs; Capital Adequacy. (a) If,
due to either (i) the introduction of or any change (other than any change by
way of imposition or increase of reserve requirements, in the case of LIBOR
Rate Advances, included in the LIBOR Rate Reserve Percentage) in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Bank of agreeing to make or making, funding or maintaining LIBOR
Rate Advances (without duplication of payments made under Section 3.05 or any
other provision of this Agreement), then the Borrower shall from time to time,
upon demand by such Bank (with a copy of such demand to the Agent), pay to the
Agent for the account of such Bank additional amounts sufficient to compensate
such Bank for such increased cost; provided that the Borrower shall only be
liable for such additional costs incurred by such Bank for the period
commencing thirty (30) days after the date of notice from such Bank to the
Borrower of such additional amounts; and provided further, that subject to
Section 2.10, the Borrower may elect to convert outstanding LIBOR Rate Advances
into Effective Federal Funds Rate Advances in accordance with Section 2.09.
(b) If any Bank determines that compliance with any law
or regulation or any guideline or request from any central bank or other
governmental authority, enacted after the date of this Agreement, or any new
interpretation of an existing law, regulation, guideline or request (whether or
not having the force of law) affects or would affect the amount of capital
required or expected to be maintained by such Bank or any corporation
controlling such Bank and that the amount of such capital is increased by or
based upon the existence of such Bank's Commitment to lend hereunder and other
commitments of this type, or its Letter of Credit Commitment, then, upon demand
by such Bank (with a copy of such demand to the Agent), the Borrower shall pay
to the Agent for the account of such Bank, from time to time as specified by
such Bank, additional amounts sufficient to compensate such Bank or such
corporation in the light of such circumstances for such increased capital
requirement; provided that the Borrower shall only be liable for such
additional costs incurred by such Bank for the period commencing thirty (30)
days after the date of notice from such Bank to the Borrower of such additional
amounts; and provided further, that subject to Section 2.10,
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the Borrower may elect to convert outstanding LIBOR Rate Advances into
Effective Federal Funds Rate Advances in accordance with Section 2.09.
SECTION 3.05. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Notes (including in respect of any Letter of
Credit) shall be made, in accordance with Section 3.01, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank and the Agent, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction under the laws of which
such Bank or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction of such Bank or any
political subdivision thereof. If the Borrower shall be required by law to
deduct any such amounts from or in respect of any sum payable hereunder or
under any Note to any Bank or the Agent, (i) the sum payable shall be increased
as may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 3.05) such
Bank or the Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law. The Borrower further agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or under the Notes or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Notes.
(b) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 3.05 shall survive the payment in full of
principal and interest hereunder and under the Notes.
SECTION 3.06. Certificate of Bank. Any Bank demanding
compensation under Section 3.04 or 3.05 shall deliver to the Borrower and the
Agent a statement reasonably setting forth the amount and manner of determining
such loss, cost or expense, which statement shall be conclusive and binding for
all purposes, absent manifest error.
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. Conditions Precedent to Initial Advances and
Issuance of Letters of Credit. The obligation of each Bank to make its initial
Advance or of the Issuing Bank to issue any Letter of Credit is subject to the
condition precedent that the Agent shall have received (or the actions
described below shall have occurred, as the case may be), on or before the day
of the initial Borrowing the following, in form and substance satisfactory to
the Agent and (except for the Notes) in sufficient copies for each Bank:
(a) The Notes, duly executed by the Borrower and payable
to the order of the Banks, respectively.
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(b) This Agreement, duly executed by the Borrower.
(c) A Guaranty Agreement duly executed by each Guarantor.
(d) A certificate of the Secretary of the Borrower
certifying (i) the names and true signatures of the officers of the Borrower
authorized to sign each Loan Document to which the Borrower is a party and the
notices and other documents to be delivered by the Borrower pursuant to any
such Loan Document; (ii) the Restated Declaration of Trust dated March 23,
1988, together with any amendments thereto, (the "Organizational Documents") of
the Borrower as in effect on the date of such certification; and (iii) the
resolutions of the Board of Trust Managers of the Borrower approving and
authorizing the execution, delivery, and performance by the Borrower of each
Loan Document to which the Borrower is a party, the notices and other documents
to be delivered by the Borrower pursuant to any such Loan Document, and the
transactions contemplated thereunder.
(e) A certificate of the Secretary of each Guarantor
certifying (i) the names and true signatures of the officers of such Guarantor
authorized to sign each Loan Document to which such Guarantor is a party and
the notices and other documents to be delivered by such Guarantor pursuant to
any such Loan Document; (ii) the By-laws and Articles of Incorporation of such
Guarantor as in effect on the date of such certification; and (iii) the
resolutions of the Board of Directors of such Guarantor approving and
authorizing the execution, delivery, and performance by such Guarantor of each
Loan Document to which each such Guarantor is a party, the notices and other
documents to be delivered by such Guarantor pursuant to any such Loan Document,
and the transactions contemplated thereunder.
(f) Subject to Section 6.08, certificates of appropriate
officials as to the existence and good standing of each of the Borrower and
each Guarantor in its jurisdiction of organization or incorporation, and any
and all other jurisdictions where the Property owned or the business transacted
by each of the Borrower and each Guarantor requires each of the Borrower and
each Guarantor to be qualified therein and where the failure to be so qualified
would have a material adverse effect on the business operations or financial
condition of the Borrower and the Guarantors, taken as a whole, or, on any day
prior to the forty-fifth (45th) day after the Closing Date, the ability of the
Borrower or any Guarantor to perform its obligations under this Agreement or
any other Loan Document.
(g) A favorable opinion of Dow, Cogburn & Friedman, P.C.,
counsel for the Borrower and the Guarantors, in form and substance satisfactory
to the Banks.
(h) Payment to the Agent of all fees and expenses payable
at Closing, including, without limitation, fees payable to the Agent in
accordance with a Syndication Letter executed in connection with this
Agreement, between the Borrower and the Agent, and fees of counsel to the Agent
and the Banks payable under Section 10.04.
(i) Payment in full out of proceeds hereunder of all
amounts outstanding, or otherwise due and owing by the Borrower or any
Subsidiary under (A) the Amended and Restated Loan Agreement, effective
December 31, 1992 by and between the Borrower and TCB, and (B) the Revolving
Credit Agreement, dated as of July 18, 1994 by and between the Borrower and TCB
(the agreements described in Clauses (A) and (B) are hereinafter referred to as
the "Existing TCB Debt").
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(j) An amendment to the Interest Rate Agreements
currently in effect between the Borrower and TCB, in form and substance
satisfactory to TCB, duly executed by the Borrower and TCB.
(k) Such other documents and instruments with respect to
the transactions contemplated hereby as the Agent may reasonably request.
SECTION 4.02. Conditions Precedent to Each Borrowing. The
obligation of each Bank to make an Advance or of the Issuing Bank to issue any
Letter of Credit on the occasion of each Borrowing (including the initial
Borrowing) shall be subject to the further conditions precedent that on the
date of such Borrowing (a) the Agent shall have received a Notice of Borrowing,
or Letter of Credit Request, as the case may be, in accordance with the terms
of this Agreement, and (b) the following statements shall be true and correct
(and each of the giving of the applicable Notice of Borrowing or Letter of
Credit Request, as the case may be, and the acceptance by the Borrower of the
proceeds of such Borrowing, shall constitute a representation and warranty by
the Borrower that on the date of such Borrowing such statements are true and
correct):
(i) The representations and warranties contained in
Article V of this Agreement are true and correct in all material
respects on and as of the date of such Borrowing, before and after
giving effect to such Borrowing, and to the application of the
proceeds therefrom, as though made on and as of such date, and
(ii) No event has occurred and is continuing, or would
result from such Borrowing or from the application of the proceeds
therefrom, which constitutes (or would constitute) a Default or an
Event of Default.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter into this Agreement, the
Borrower represents and warrants to the Banks (which representations and
warranties will survive the delivery of any Note, the issuance of any Letter of
Credit and the making of any Advance) that:
SECTION 5.01. Existence. The Borrower (a) is a real estate
investment trust duly organized under the Texas Real Estate Investment Trust
Act, Tex. Rev. Civ. Stat. Ann. art. 6138A (Vernon 1986) (the "Act"), and in
good standing under the Act and the laws of the State of Texas, (b) has the
power to own its Property and to carry on its business as now conducted, and
(c) is duly qualified to do business and is in good standing in every
jurisdiction where such qualification is necessary. Each Subsidiary of the
Borrower (x) is duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is incorporated, (b) has the power to own
its property and carry on its business as now conducted, and (i) is duly
qualified to do business and is in good standing in every jurisdiction in which
such qualification is necessary, and where the failure to be so qualified or in
good standing would have a material adverse effect on the business operations
or financial condition of the Borrower and its Subsidiaries, taken as a whole.
The Subsidiaries of the
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Borrower, and the jurisdiction of organization of each such Subsidiary, are set
forth on Exhibit 5.01 hereto.
SECTION 5.02. Financial Condition. The Borrower has
furnished the Bank with consolidated financial statements as at and for the
twelve-month period ended December 31, 1993, accompanied by the opinion of
Deloitte & Touche, and quarterly unaudited consolidated financial statements as
at and for the three-month periods ending March 31, 1994, June 30, 1994, and
September 30, 1994. These statements are true and correct and have been
prepared in conformity with GAAP consistently followed throughout the periods
involved. They fully and accurately reflect the financial condition of the
Borrower and its Subsidiaries and the results of their operations as at the
date and for the period indicated.
SECTION 5.03. Use of Proceeds; Margin Stock. Neither the
Borrower nor any Subsidiary owns any Margin Stock. The proceeds of the Loans
shall be used to prepay the Existing TCB Debt and for general corporate
purposes. None of the proceeds of Borrowings hereunder will be used for the
purpose of purchasing or carrying any Margin Stock or for the purpose of
reducing or retiring any indebtedness which was originally incurred to purchase
or carry a Margin Stock or for any other purpose which might constitute this
transaction a "purpose" credit within the meaning of said Regulation U, as now
in effect or as it may hereafter be amended. Neither the Borrower nor any
Subsidiary nor any agent acting on its or their behalf has taken or will take
any action which might cause this Agreement or any Advance to violate
Regulation G, T, U or X or any other regulation of the Board of Governors of
the Federal Reserve System or to violate the Securities Exchange Act of 1934,
in each case as in effect now or as the same may hereafter be in effect on the
date of any Borrowing hereunder.
SECTION 5.04. Binding Obligations. The Borrower has the
power and authority under the Act to make and carry out this Agreement, to make
the borrowings provided for herein, to execute and deliver the Notes, and to
perform its obligations hereunder and under the Notes; and all such action has
been duly authorized by all necessary proceedings on its part. Each Subsidiary
which is a party to a Guaranty Agreement has the power and authority to perform
its obligations in accordance with the terms and conditions of the Guaranty
Agreement to which it is a party, and all such action has been duly authorized
by all necessary proceedings on its part. Each of this Agreement and the Notes
have been duly and validly executed and delivered by the Borrower and
constitute a valid and legally binding obligation of the Borrower enforceable
in accordance with its terms, and the Guaranty Agreements have been duly
executed and delivered by the Guarantors and constitute valid and legally
binding obligations of each such Guarantor enforceable in accordance with the
respective terms thereof and of this Agreement, except as limited by Debtor
Laws.
SECTION 5.05. No Conflict or Resultant Lien. The
execution, delivery, and performance by the Borrower and each Subsidiary of
each Loan Document to which it is a party, the Borrowings hereunder by the
Borrower as contemplated herein, and the effectuation of the transactions
contemplated by any Loan Document, do not and will not violate any provision
of, or result in a default under, the Borrower's Organizational Documents, or
the Articles of Incorporation or other charter documents or by-laws of any
Subsidiary, or any material agreement to which the Borrower or such Subsidiary
is a party, or Governmental Requirement to which the Borrower or such
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Subsidiary is subject, or result in the creation or imposition of any Lien upon
any Property of the Borrower or such Subsidiary.
SECTION 5.06. Compliance with Other Agreements. Neither
the Borrower nor any Subsidiary is in default in any material respect under any
Governmental Requirement. Neither the Borrower nor any Subsidiary is in
default under any other agreement, which default could have a material adverse
effect on the business, operations or financial condition of the Borrower and
its Subsidiaries, taken as a whole, or the ability of the Borrower or any
Guarantor to perform its obligations under this Agreement or any other Loan
Document to which it is a party.
SECTION 5.07. No Consent. No authorization or approval or
other action by, and no notice to or filing with, any Person or any
Governmental Authority is required for the due execution, delivery, and
performance by each of the Borrower or any Subsidiary of any Loan Document to
which it is a party or the Borrowings hereunder, in each case as contemplated
herein, or the effectuation of the transactions contemplated under any Loan
Document.
SECTION 5.08. Litigation. Except as described on Exhibit
5.08, attached hereto or as disclosed in any Compliance Certificate, there are
no material actions, suits, or proceedings pending or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any Subsidiary, or
the Properties of the Borrower or any Subsidiary.
SECTION 5.09. Taxes; Governmental Charges. The Borrower
and each Subsidiary has filed or caused to be filed all federal, state, and
foreign income tax returns which are required to be filed, and has paid or
caused to be paid all taxes as shown on such returns or on any assessment
received by it to the extent that such taxes have become due and payable,
except for such taxes and assessments as are being contested in good faith in
appropriate proceedings and reserved for in accordance with GAAP in the manner
required by Section 6.04.
SECTION 5.10. Full Disclosure. All information furnished
by or on behalf of the Borrower or any Subsidiary to the Agent or any Bank for
purposes of or in connection with this Agreement or any transaction
contemplated hereby is true and accurate in all material respects and not
incomplete by omitting to state any material fact necessary to make such
information not misleading. There is no material fact relevant to this
Agreement or the transactions contemplated by this Agreement known to the
Borrower which has not been disclosed herein or in such other written
documents, information or certificates furnished to the Agent and the Banks for
use in connection with the transactions contemplated hereby.
SECTION 5.11. Investment Company Act. Neither the Borrower
nor any Subsidiary is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 5.12. Compliance with Law. Except as disclosed in
any Compliance Certificate and approved by the Banks, the business and
operations of the Borrower and each Subsidiary as conducted at all times have
been and are in compliance in all material respects with all applicable
Governmental Requirements.
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SECTION 5.13. ERISA. Each of the Borrower and each
Subsidiary is in compliance in all material respects with all applicable
provisions of ERISA and the Code with respect to each Plan, including the
fiduciary provisions thereof, and each Plan is, and has been, maintained in
material compliance with ERISA and, where applicable, the Code. Full payment
when due has been made of all material amounts which the Borrower or any
Subsidiary is required under the terms of each Plan or applicable law to have
paid as contributions to such Plan as of the date hereof. For purposes of this
Section 5.13, the term "material" shall mean a liability in excess of
$10,000,000.
SECTION 5.14. No Default or Event of Default. No Default
or Event of Default hereunder has occurred and is continuing.
SECTION 5.15. Permits and Licenses. All material permits,
licenses and other governmental authorizations necessary for the Borrower or
any Subsidiary to carry on its business have been obtained and are in full
force and effect and neither the Borrower nor any Subsidiary is in breach of
the foregoing. Each of the Borrower and each Subsidiary owns or possesses
adequate licenses or other valid rights to use United States trademarks, trade
names, service marks, copyrights, patents and applications therefor which are
necessary for the conduct of the business, operations or financial condition of
the Borrower or such Subsidiary.
SECTION 5.16. Insurance. Each of the Borrower and each
Subsidiary maintains insurance of such types as is usually carried by companies
of established reputation engaged in the same or similar business and which are
similarly situated with financially sound and reputable insurance companies and
associations acceptable to the Agent, with a rating of at least A-, financial
size category, Class VI as set forth in Best's Key Rating Guide, published by
A.M. Best Company, Inc., and in such amounts as such insurance is usually
carried by similar businesses, and in any event, in compliance with the
requirements of Section 6.03. If the rating of any insurance company or
association is or becomes below the aforesaid minimum requirements, then
Borrower and its Subsidiaries shall have 45 days to secure (i) an appropriate
reinsurance or other endorsement which will satisfy the aforesaid minimum
standards, or (ii) secure replacement insurance coverage satisfying the
aforesaid minimum standards.
All representations and warranties in each Loan Document shall
survive the delivery of the Notes and the making of any Advance, and shall
continue for 366 days after the repayment of the Notes, the expiration or
termination of, any Letter of Credit, and the termination of the Letter of
Credit Commitment and the Commitments; any investigation at any time made by or
on behalf of the Agent or any Bank shall not diminish any Bank's right to rely
thereon.
ARTICLE VI
AFFIRMATIVE COVENANTS OF THE BORROWER
So long as any Note shall remain unpaid or any Letter of
Credit remains outstanding, or any Bank shall have any Commitment hereunder,
the Borrower covenants and agrees that:
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SECTION 6.01. Reporting and Notice Requirements. The
Borrower will furnish to each Bank, with respect to items described in
Subsections (a), (b), (c) and (f), and to the Agent for delivery to the Banks,
with respect to all other items:
(a) Quarterly Financial Statements. As soon as available
and in any event within forty-five (45) days after the end of each
fiscal quarter of the Borrower (excluding the fourth quarter),
Financial Statements of the Borrower and its Subsidiaries as of the
end of such quarter.
(b) Annual Financial Statements. As soon as available
and in any event within ninety (90) days after the end of each fiscal
year of the Borrower, Financial Statements of the Borrower and its
Subsidiaries for such fiscal year.
(c) Compliance Certificate. Together with and at the
time of the delivery of any information required by Subsection (a) and
Subsection (b) of this Section 6.01, a certificate (a "Compliance
Certificate") substantially in the form of Exhibit 6.01(c), attached
hereto, signed by a Responsible Officer, (i) stating that there exists
no Event of Default or Default, or if any Event of Default or Default
exists, specifying the nature thereof, the period of existence
thereof, and what action the Borrower proposes to take with respect
thereto; (ii) setting forth the credit rating (or implied credit
rating) assigned to the Borrower's senior-unsecured, long-term debt
by S&P as of the date of the Compliance Certificate, and as of the
date of delivery of such Financial Statements; and (iii) setting forth
with reasonable specificity such schedules, computations and other
information as may be required to demonstrate that the Borrower is in
compliance with its covenants in Sections 7.02, 7.03, 7.04 and 7.07
hereof.
(d) Notice of Default. Promptly after any Responsible
Officer of the Borrower knows or has reason to know that any Default
or Event of Default has occurred, a written statement of a Responsible
Officer of the Borrower setting forth the details of such Default or
Event of Default and the action which the Borrower has taken or
proposes to take with respect thereto.
(e) Notice of Litigation. Together with and at the time
of the delivery of information required by Subsection (a) or (b),
notice of any litigation, legal, administrative, or arbitral
proceeding, investigation, or other action of any nature which
involves a claim (or a series of related claims in the aggregate) for
an amount equal to or exceeding $5,000,000, or, promptly after any
Responsible Officer of the Borrower or any Subsidiary obtaining
knowledge of the commencement thereof, notice of any litigation,
legal, administrative or arbitral proceeding, investigation or other
action of any nature which involves the reasonable possibility, if
adversely determined, in the judgment of the Borrower, of a judgment
or liability which could have a material adverse effect on the
business, operations or financial condition of the Borrower and its
Subsidiaries, taken as a whole, or on the ability of the Borrower or
any Subsidiary to perform its obligations under this Agreement or any
other Loan Document to which it is a party, and upon request by the
Agent or any Bank, details regarding such litigation which are
satisfactory to the Agent or such Bank.
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(f) Securities Filings. Promptly after the sending or
filing thereof and in any event within fifteen (15) days thereof,
copies of all reports which the Borrower sends to any of its security
holders, and copies of all reports (including each regular and
periodic report, but without duplication of Financial Statements
provided in accordance with Sections 6.01(a) and (b)) and each
registration statement or prospectus which the Borrower or any
Subsidiary files with the Securities and Exchange Commission or any
national securities exchange.
(g) ERISA Notices. The Borrower will and will cause its
ERISA Affiliates to obtain and deliver to the Agent, as soon as
possible and in any event within 10 days from receipt, or if
applicable, filing, copies of any reports, notices or filings which
the Borrower or an ERISA Affiliate files with the Internal Revenue
Service, PBGC or the United States Department of Labor with respect to
an ERISA Event or which the Borrower or an ERISA Affiliate receives
from such Governmental Authority relating to an ERISA Event, and
copies of any notice, complaint or other documentation of any pending
or threatened lawsuit or claim relating to any Plan or Multiemployer
Plan which may have a material adverse effect on the Borrower or an
ERISA Affiliate, taken as a whole.
(h) Rating Certificate. Promptly upon the Borrower's
knowledge of or notification (i) by S&P that the credit rating (or
implied credit rating) assigned to senior-unsecured, long-term debt of
the Borrower by S&P has changed from the rating set forth in the most
recent Compliance Certificate delivered in accordance with Section
6.01(c), or (ii) by any other nationally recognized rating agency that
the Borrower's senior unsecured, long-term debt has been assigned a
credit rating (or an implied credit rating), or that subsequent to
such assignment, such credit rating has been changed, the Borrower
will notify the Agent in writing of the occurrence of such event, and
if a notice has been received by the Borrower from S&P or such other
rating agency, shall provide to the Agent a copy of such notice (each
such notice provided hereunder, a "Rating Certificate").
(i) Other Information. Such other information respecting
the condition or operations, financial or otherwise, of the Borrower
or any of its Subsidiaries as any Bank through the Agent may from time
to time reasonably request.
SECTION 6.02. Maintenance. The Borrower will, and will
cause each of its Subsidiaries to, (a) at all times do or cause to be done all
things necessary to maintain, preserve and renew its existence as a real estate
investment trust under the Act or its corporate existence, as the case may be,
and its rights and franchises, and comply with all governmental laws, rules,
regulations or rulings with respect thereto; provided, however, that nothing
contained in this Section 6.02 or any other provision of this Agreement shall
(i) require the Borrower or any of its Subsidiaries to comply with any such
governmental laws, rules, regulations or rulings, so long as the validity or
applicability thereof shall be contested in good faith by appropriate
proceedings and any such failure to comply could not reasonably be anticipated
to have a material adverse effect on the business, operations or financial
condition of the Borrower and its Subsidiaries taken as a whole on a
consolidated basis, or the ability of the Borrower or such Subsidiary to
perform its obligations under this Agreement or any other Loan Document; or
(ii) require the Borrower or any of its Subsidiaries to maintain, preserve or
renew any right or franchise not necessary or desirable in the conduct of its
business as determined in good faith by Borrower's Trust Managers or Board of
Directors, as the case may be, and (b) except
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for planned demolition of Real Property or Property subject to a direct
financing lease (as reflected on the Financial Statements), for the purpose of
increasing its ultimate value, at all times maintain, preserve, protect and
keep or cause to be maintained, preserved, protected and kept its Property in
good repair, working order and condition (ordinary wear and tear excepted) and,
from time to time, will make or cause to be made all repairs, renewals,
replacements, extensions, additions, betterments and improvements to its
Property as are appropriate, so that (i) each of the Borrower and its
Subsidiaries maintains its current line of business and (ii) the business
carried on in connection therewith may be conducted properly and efficiently at
all times.
SECTION 6.03. Insurance. The Borrower will, and will cause
each of its Subsidiaries to, keep its Property insured against loss or damage
by fire and other hazards with extended coverage and as is otherwise usually
carried by companies of established reputation engaged in the same or similar
business which are similarly situated, and in such amounts as such insurance is
usually carried by such similar businesses. Such policy or policies shall be
satisfactory in form and substance to the Banks, with the premiums thereon
fully paid in advance, issued by and binding upon financially sound and
reputable insurance companies and associations acceptable to the Agent, with a
rating of at least A-, financial size category, Class VI as set forth in Best's
Key Rating Guide, published by A.M. Best Company, Inc., and providing for at
least fifteen (15) days written notice to the Agent of cancellation, failure to
renew or other material change in such policy or policies. If the rating of any
insurance company or association is or becomes below the aforesaid minimum
requirements, then Borrower and its Subsidiaries shall have 45 days to secure
(i) an appropriate reinsurance or other endorsement which will satisfy the
aforesaid minimum standards, or (ii) secure replacement insurance coverage
satisfying the aforesaid minimum standards.
SECTION 6.04. Taxes and Other Claims. The Borrower will,
and will cause each of its Subsidiaries to, duly pay and discharge, as the same
become due and payable, all of its taxes (including without limitation all
federal and state income taxes, ad valorem taxes, sales taxes, use taxes,
occupational taxes, franchise taxes, withholding taxes, severance taxes, excise
taxes and manufacturing taxes) and assessments, and all claims and charges of
any Governmental Authority or any other Person levied or imposed, or which if
unpaid might become a Lien or charge, upon the franchises, assets, earnings or
businesses of the Borrower or any of its Subsidiaries, as the case may be;
provided, however, that nothing contained in this Section 6.04 shall require
the Borrower or any of its Subsidiaries to pay any such tax, assessment, charge
or claim so long as the validity thereof shall be contested in good faith by
appropriate proceedings and the Borrower or any such Subsidiary shall set aside
on its books adequate reserves with respect thereto if required by GAAP.
SECTION 6.05. Right of Inspection. From time to time upon
reasonable notice to the Borrower, the Borrower will, and will cause each
Subsidiary to, permit any officer, or employee of, or agent designated by, the
Agent or any Bank to visit and inspect any of the Properties of the Borrower or
any Subsidiary, examine the Borrower's or such Subsidiary's corporate books or
financial records, take copies and extracts therefrom, and discuss the affairs,
finances, and accounts of the Borrower or any Subsidiary with the Borrower's or
such Subsidiary's officers or certified public accountants, all as often as
the Agent or any Bank may reasonably desire.
SECTION 6.06. Guarantees of Subsidiaries. In the event
that the Borrower shall at any time acquire or create a new Subsidiary all of
the stock of which is 100% owned by the
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Borrower, the Borrower shall immediately cause such Subsidiary to provide to
the Agent for the benefit of the Banks a guaranty of the obligations of the
Borrower under this Agreement which shall be in the form attached hereto as
Exhibit 1.01; provided that, it shall not constitute a Default hereunder if
such new Subsidiary does not provide such Guaranty Agreement until the date
required for delivery of the Compliance Certificate in accordance with Section
6.01(c). It is agreed and understood that the obligation of the Borrower under
this Section 6.06 to cause any such Subsidiary to provide to the Agent for the
benefit of the Banks a guaranty is a condition precedent to the making of the
Advances pursuant to this Agreement and that the entry into this Agreement by
the Banks constitutes good and adequate consideration for the provision of such
guaranty.
SECTION 6.07. Compliance with Law. The Borrower will, and
will cause each of its Subsidiaries to, comply in all material respects with
all laws, rules, regulations and rulings of all Governmental Authority having
jurisdiction in respect of the conduct of its business and the ownership of its
Property.
SECTION 6.08. Delivery of Certain Certificates. The
Borrower agrees that to the extent it was unable to provide certificates
required under Section 4.01(f) on or before the Closing Date for any
Subsidiary, after using its best efforts to obtain the same, all such
certificates shall be provided to the Agent, on behalf of the Banks, on or
before the forty-fifth (45th) day after the Closing Date.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Note shall remain unpaid or any Bank shall have
any Commitment hereunder, the Borrower covenants and agrees that:
SECTION 7.01. Liens, Etc. The Borrower will not grant,
permit, create or suffer to exist, and will not permit any Subsidiary to grant,
permit, create or suffer to exist, any Lien, upon or with respect to any of its
Properties, whether now owned or hereafter acquired, or assign, or permit any
of its Subsidiaries to assign, any right to receive income, in each case to
secure or provide for the payment of any Debt of any Person, other than:
(a) Permitted Liens; or
(b) Liens which do not violate the covenants contained in
Section 7.02(b) hereof.
SECTION 7.02. Limitations on Incurrence of Debt. (a) The
Borrower will not, and will not permit any Subsidiary to, incur any Debt if
prior to incurrence of such Debt, but after giving effect to the incurrence of
such Debt and the application of the proceeds thereof, the aggregate principal
amount of all outstanding Debt of the Borrower and its Subsidiaries is greater
than 60% of the Total Assets, determined as at the last day of the most recent
preceding calendar year or calendar quarter, as the case may be, as reflected
in the Financial Statements of the Borrower most recently provided under
Sections 6.01(a) or (b).
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(b) The Borrower will not, and will not permit any
Subsidiary to, incur any Debt secured by any Lien upon any Property of the
Borrower or any Subsidiary if, prior to incurrence of such Debt, but after
giving effect to the incurrence of such Debt and the application of the
proceeds thereof, the aggregate principal amount of all outstanding Debt of the
Borrower and its Subsidiaries which is secured by a Lien on Property of the
Borrower or any Subsidiary is greater than 40% of Total Assets, determined as
at the last day of the most recent preceding calendar year or calendar quarter,
as the case may be, as reflected in Financial Statements of the Borrower most
recently provided under Sections 6.01(a) or (b).
(c) For purposes of this Section 7.02, the term (i)
"Total Assets" does not include securities issued or unconditionally guaranteed
by the United States government or an agency thereof or by the Federal National
Mortgage Association which secure a repurchase agreement with a financial
institution, entered into in the ordinary course of business by the Borrower or
any Subsidiary, and (ii) "Debt" does not include obligations under any such
repurchase agreement or indebtedness of the Borrower or any Subsidiary owed to
a financial institution, which is secured by governmental securities described
in clause (i) hereof, owned by the Borrower or such Subsidiary, entered into in
the ordinary course of business (a "reverse repurchase agreement"), provided
that in the case of transactions described in clauses (i) and (ii) hereof, the
market value of such governmental securities is at all times equal at least to
the principal amount of such repurchase agreement or reverse repurchase
agreement.
SECTION 7.03. Unimproved Real Property. The Borrower will
not permit Unimproved Real Property to exceed 12.5% of Undepreciated Real
Estate Assets.
SECTION 7.04. Sale or Other Disposition of Real Property.
The Borrower will not, and will not permit its Subsidiaries to, sell, dispose
of or otherwise transfer (including, without limitation, a sale-leaseback) (i)
Real Property of the Borrower or any Subsidiary with an aggregate book value in
any twelve-month period, ending on the last day of the month in which such
disposition occurs (or if shorter, for the period from the Closing Date to such
day), for all such dispositions (after giving effect to such disposition),
greater than 10% of the Undepreciated Real Estate Assets as of the last day of
the preceding calendar quarter, or (ii) Real Property of the Borrower or any
Subsidiary with a cumulative aggregate book value in any thirty-six month
period, ending on the last day of the month in which such disposition occurs
(or if shorter, for the period from the Closing Date to such day), for all such
dispositions (after giving effect to such disposition) greater than 15% of the
Undepreciated Real Estate Assets as of the last day of the preceding calendar
quarter, unless, on the date on which the next Compliance Certificate is
required to be delivered in accordance with Section 6.01(c), the Borrower shall
have delivered to the Agent the excess of Net Proceeds of such disposition over
such applicable percentage amounts of the Undepreciated Real Estate Assets,
respectively (herein referred to as the "Adjusted Net Proceeds") as a
prepayment on the Notes, in accordance with Section 3.03. For purposes of this
Section 7.04, neither a lease of property (nor the existence of a financing
lease) nor creation of a Lien on such property in the ordinary course of
business, shall be deemed to be a disposition of such property.
SECTION 7.05. Mergers; Consolidations. Except as permitted
under Section 7.06(f), the Borrower will not, and will not permit any
Subsidiary to, merge or consolidate with or into any other Person, or convey,
transfer or otherwise dispose of (whether in one transaction or in
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a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired); provided that (a) subject to the limitations of
Section 7.06(f), the Borrower may merge or consolidate with or into, or acquire
all or substantially all of the assets or capital stock of any other Person, so
long as the Borrower is the survivor thereof, and (b) any Subsidiary may merge
or consolidate with or into, or acquire all or substantially all of the assets
or capital stock of, (i) any other Subsidiary, so long as, if either such
Subsidiary is a Guarantor, a Guarantor is the survivor thereof, and (ii)
subject to the limitations of Section 7.06(f), any other Person (other than the
Borrower), so long as a Subsidiary is the survivor thereof, and (c) any
Subsidiary may merge into or transfer all or substantially all of its assets to
the Borrower, so long as the Borrower is the survivor thereof, if prior to and
after giving effect thereto, in the case of clauses (a), (b) and (c) no Default
or Event of Default has occurred or would exist (expressly including, without
limitation, under Section 7.06(f)).
SECTION 7.06. Investments, Loans, and Advances. Without
the consent of the Banks, the Borrower will not, and will not permit any
Subsidiary to, make or permit to remain outstanding any Investment, endorse, or
otherwise be or become contingently liable, directly or indirectly, in
connection with the stock or other securities of, or purchase, or acquire any
stock or securities of, or any other interest in, any Person, except that:
(a) the Borrower or any Subsidiary may permit to remain
outstanding Investments existing on the date hereof;
(b) the Borrower or any Subsidiary may acquire and own
capital stock, obligations, or securities received in settlement of
debts (created in the ordinary course of business) owing to the
Borrower or any Subsidiary;
(c) the Borrower or any Subsidiary may own, purchase, or
acquire Cash Equivalents;
(d) the Borrower and any Subsidiary may make intercompany
loans and advances which are permitted under Section 7.08 hereof, and
(subject to Section 6.06) may form Subsidiaries, the capital stock of
which is 100% owned by the Borrower or a Guarantor;
(e) the transactions permitted under Subsection (a), (b)
and (c) of Section 7.05 are permissible;
(f) the Borrower or any Subsidiary may (i) acquire the
capital stock of a Person without the consent of the Banks, so long as
(A) the aggregate purchase price, or cost, of such stock received in
exchange for Capital Shares or any asset of the Borrower or a
Subsidiary (measured by the value of such Capital Shares or asset of
the Borrower or such Subsidiary given in exchange therefor) does not
exceed, in the aggregate for any successive twelve (12) month period
for all such transactions (or series of related transactions) an
amount equal to one-third (33 1/3%) of Total Assets, determined as of
the last day of the preceding calendar quarter, or (B) if all or a
part of such purchase price is paid in cash, the cash portion of the
purchase price does not exceed, in the aggregate for any successive
twelve (12) month period for all such transactions (or series of
related transactions) an amount equal
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to ten percent (10%) of the Total Assets, determined as of the last
day of the preceding calendar quarter, and (ii) acquire other
Investments, (in addition to Investments permitted under subsections
(a) through (e), or (f)(i), or (g), of this Section 7.06) so long as
the aggregate purchase price, or cost, of such acquisition (measured
by the value of such Capital Shares or any assets or promissory note
of the Borrower or such Subsidiary, if any, given in exchange
therefor, plus the cash portion thereof) does not exceed in the
aggregate for any successive twelve (12) month period for all such
transactions (or series of related transactions) an amount equal to
ten percent (10%) of Total Assets, determined as of the last day of
the preceding calendar quarter, and in the case of each of clause (i)
or (ii), (w) such action does not result in the income of the Borrower
being primarily attributable to loans secured by mortgages on Real
Property, (x) if the acquisition results in ownership by the Borrower
or any Subsidiary (whether beneficial or of record) of a majority of
the voting stock of such Person or results in a merger or
consolidation with the Borrower or such Subsidiary, then the board of
directors of such Person shall have approved such transaction and such
transaction shall not constitute a "hostile" acquisition with respect
to such Person, (y) (except for Investments described under clause
(ii) hereof) the business of such Person is substantially similar to
the business conducted by the Borrower or such Subsidiary, or is
primarily to hold Real Property, and such purchase or acquisition is
made in the ordinary course of business, and (z) in any event, prior
to and after giving effect to such purchase or acquisition, no Default
or Event of Default has occurred or would exist; and
(g) the Borrower and any Subsidiary may purchase or
acquire directly or indirectly, through partnerships, joint ventures
or otherwise, title to Real Property (expressly including, for
purposes of this Section 7.06, without limitation, "direct financing
leases," reflected as such on the Financial Statements.
SECTION 7.07. Coverage Ratio. The Borrower will not permit
the ratio of (i) Funds From Operations, to (ii) the Annual Service Charge,
determined as of the last day of each fiscal quarter for the four (4)
successive quarterly accounting periods ending on such date (the "Coverage
Ratio") to be less than 2.5 to 1.0.
SECTION 7.08. Transactions with Affiliates. The Borrower
will not, and will not permit any Subsidiary to, directly or indirectly, enter
into any transaction, or modify any existing transaction, with any Affiliate
(including, without limitation, any transaction involving the payment of
management fees or directors' fees to any Affiliate), except for transactions
(including any loans or advances by or to any Affiliate otherwise in compliance
under this Agreement) in good faith, the terms of which are fair and reasonable
to the Borrower or such Subsidiary, and are at least as favorable as the terms
which could be obtained by the Borrower or such Subsidiary in a comparable
transaction made on an arm's-length basis between unaffiliated parties.
SECTION 7.09. Change of Business. The Borrower will not,
and will not permit any Subsidiary to, make any material change in the nature
of the business conducted by the Borrower and its Subsidiaries taken as a whole
and will at all times qualify for taxation as a Real Estate Investment Trust
under the Code.
SECTION 7.10. Intentionally Omitted
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SECTION 7.11. Amendment of Organizational Documents. The
Borrower will not, and will not permit any of its Subsidiaries to, without the
prior written consent of the Banks, amend, alter or modify its Organizational
Documents or articles of incorporation or other charter or bylaws, as the case
may be, in such a manner as to (a) change its purpose or (b) restrict its
powers in any manner.
SECTION 7.12. Guarantees. "Guaranty" shall mean all
obligations not otherwise reflected on the balance sheet of the Borrower or any
Subsidiary whereby the Borrower or such Subsidiary guarantees the performance
of any joint venture or partnership or the payment or performance of any
indebtedness, dividend or other obligation of any other Person (for purposes of
this Section 7.12, the "Primary Obligor") in any manner, whether directly or
indirectly, including obligations incurred through an agreement or covenant,
contingent or otherwise:
(i) to purchase such indebtedness or obligation or any
Property or assets constituting security therefor;
(ii) to advance or supply funds
(A) for the purchase or payment of such
indebtedness or obligation, or
(B) to maintain working capital or other balance
sheet condition or otherwise to advance or make available
funds for the purchase or payment of such indebtedness or
obligation;
(iii) to lease Property or to purchase securities or other
Property or services primarily for the purpose of assuring the owner
of such indebtedness or obligation of the ability of the Primary
Obligor to make payment of the indebtedness or obligation; or
(iv) to assure the owner of the indebtedness or obligation
of the Primary Obligor against loss in respect thereof.
Notwithstanding the above, and in any event, except for Guaranties by the
Borrower of indebtedness or obligations of any Subsidiary, or Guaranties of any
Subsidiary of indebtedness or obligations of the Borrower, neither the Borrower
nor any Subsidiary shall enter into any Guaranty (other than checks deposited
and/or endorsed in the ordinary course of business of the Borrower or any
Subsidiary) unless (A) liability incurred by the Borrower or such Subsidiary
under such Guaranty is secured and is for a Primary Obligor's indebtedness or
other obligation, and (B) upon payment by the Borrower or such Subsidiary on
account of (or in connection with) its obligations under the Guaranty or, after
compliance with applicable foreclosure proceedings specified by law or
otherwise agreed upon, the Borrower or such Subsidiary will become subrogated
to the right, title and interests of the beneficiary of the Guaranty or of the
Primary Obligor, to all Property securing such liability. By way of
illustration, but not limitation: (x) in the case of a Guaranty of the
obligations of a venturer or partner, the Guaranty shall be deemed secured if
the Borrower or
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such Subsidiary is entitled (after compliance with applicable foreclosure
proceedings specified by law or otherwise agreed upon) to such defaulting
party's venture or partnership interest in case of a default of such venturer
or partner; (y) in the case of the Guaranty of a lease, the Guaranty shall be
deemed secured if the Borrower or such Subsidiary is entitled (after compliance
with applicable foreclosure proceedings specified by law or otherwise agreed
upon) to the leasehold estate in case of default by the tenant under such
lease; and (z) in the case of the Guaranty of a secured promissory note, a
Guaranty shall be deemed secured if the Borrower or such Subsidiary is entitled
to purchase the note and the lien securing same, and to become subrogated to
the rights of the previous payee on the Note in the case of default of the
maker on such default.
SECTION 7.13. Assets Retained. The Borrower will not
permit the portion of Undepreciated Real Estate Assets which is subject to no
Lien (other than a Permitted Lien) to be less than 150% of the aggregate
principal amount outstanding at any time of Debt which is not secured by a Lien
on Property of the Borrower or any Subsidiary.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. Events of Default. If any of the following
events ("Events of Default") shall occur:
(a) The Borrower shall fail to pay principal of or
interest on any Note or fees or other amounts due under any Note or
this Agreement or, in connection with its reimbursement obligations
under any Letter of Credit or any other Loan Document, when the same
becomes due and payable; or
(b) Any representation or warranty made by the Borrower
(or any of its Responsible Officers) under or in connection with any
Loan Document shall prove to have been incorrect in any material
respect when made or deemed made; or
(c) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in Sections 6.01(d) and 6.06 or
in Article VII; or
(d) The Borrower shall fail to perform or observe any
term, covenant or agreement contained in any Loan Document (other than
those set forth in (a), (b) and (c) above) on its part to be performed
or observed if such failure shall remain unremedied for thirty (30)
days after the occurrence of such event; or
(e) The Borrower shall fail to pay any principal of or
premium or interest on any Debt (other than Non-Recourse Debt) which
is outstanding in a principal amount greater than $10,000,000 in the
aggregate when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise); or
any other event constituting a default (however defined) shall occur
or condition shall exist under any agreement or instrument relating to
any such Debt outstanding in a principal amount greater than
$10,000,000 (other than Non-Recourse Debt) and shall continue after
the applicable grace period, if any, specified in such agreement or
instrument; or
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(f) The Borrower or any of its Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit
in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower or any of its
Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts
under any Debtor Laws, or seeking the entry of an order for relief or
the appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its Property and, in
the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for
relief against, or the appointment of a receiver, trustee, custodian
or other similar official for, it or for any substantial part of its
Property) shall occur; or the Borrower or any of its Subsidiaries
shall take any corporate action to authorize any of the actions set
forth above in this subsection (f); or
(g) Any final judgment or order for the payment of money
which, individually or in the aggregate, shall be in excess of
$1,000,000 at any time, shall be rendered against the Borrower or any
of its Subsidiaries and remains unpaid and a stay of execution thereof
shall not be in effect after entry thereof; or
(h) With respect to any Plan, Multiemployer Plan or any
other employee benefit plan within the meaning of Section 3(3) of
ERISA, the Borrower or any ERISA Affiliate has incurred and fails to
pay (or fund, as applicable) within the maximum time period permitted
by law, a liability in excess of $10,000,000; or
(i) An Event of Default (however defined) in that certain
Master Swap Agreement between the Borrower and TCB dated as of January
29, 1992, as amended, or in any interest rate swap agreement issued
thereunder, or any other interest rate protection agreement to which
the Borrower or any Subsidiary is a party (the "Interest Rate
Agreements"), shall have occurred at any time during which the Agent
or any Bank is a counterparty thereunder; or
(j) The Borrower shall be or become, in the reasonable
judgment of the Agent or any Bank, a liquidating trust under the
Internal Revenue Code of 1986, as amended;
then, and in any such event, the Agent (i) shall at the request, or may with
the consent, of the Majority Banks, by notice to the Borrower, declare the
Commitment (including the Letter of Credit Commitment) of each Bank to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Majority Banks by notice to the
Borrower, declare the Notes, all interest thereon and all other amounts payable
under this Agreement to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower; provided however,
that upon such event the Borrower shall deliver to the Agent, for deposit into
an interest bearing collateral account, readily available funds in an amount
equal to the aggregate undrawn face amount of all Letters of Credit issued and
outstanding at such time, as security for the obligations of the Borrower under
such
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Letters of Credit; provided further that funds on deposit in such collateral
account shall be returned to the Borrower periodically in an amount
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equal to amounts drawn under a Letter of Credit and reimbursed to the Banks by
the Borrower from time to time, or upon expiration or termination otherwise of
a Letter of Credit, without a draw outstanding, in the face amount of such
Letter of Credit; provided further, that in the event of an entry of an order
for relief with respect to the Borrower or any of its Subsidiaries under the
United States Bankruptcy Code, (A) the obligation of each Bank to make Advances
shall automatically be terminated and (B) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
ARTICLE IX
THE AGENT
SECTION 9.01. Authorization and Action. Each Bank hereby
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the Agent
by the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Notes), the
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions of the
Majority Banks, and such instructions shall be binding upon all Banks and all
holders of Notes; provided however, that the Agent shall not be required to
take any action which exposes the Agent to personal liability or which is
contrary to this Agreement or applicable law. The Agent agrees to give to each
Bank prompt notice of each notice given to it by the Borrower pursuant to the
terms of this Agreement.
SECTION 9.02. Agent's Reliance, Etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the Agent:
(i) may, subject to the provisions of Section 10.08 hereof, treat the payee of
any Note as the holder thereof until the Agent receives written notice of the
assignment or transfer thereof signed by such payee and including the agreement
of the assignee or transferee to be bound hereby as it would have been if it
had been an original Bank party hereto, in form satisfactory to the Agent; (ii)
may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Bank and shall not be responsible to any
Bank for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of the
Borrower or to inspect the property (including the books and records) of the
Borrower; (v) shall not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of this Agreement by acting
upon any notice, consent, certificate or other instrument or
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writing (which may be by telecopier, telegram, cable or telex) believed by it
to be genuine and signed or sent by the proper party or parties.
SECTION 9.03. TCB and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, TCB shall have
the same rights and powers under this Agreement as any other Bank and may
exercise the same as though it were not the Agent; and the term "Bank" or
"Banks" shall, unless otherwise expressly indicated, include TCB in its
individual capacity. TCB and its Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, and generally engage in any kind
of business with, the Borrower, any of its Subsidiaries and any Person who may
do business with or own securities of the Borrower or any such Subsidiary, all
as if TCB were not the Agent and without any duty to account therefor to the
Banks.
SECTION 9.04. Bank Credit Decision. Each Bank acknowledges
that it has, independently and without reliance upon the Agent or any other
Bank and based on the financial statements referred to in Sections 5.02 and
6.01 and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Bank also acknowledges that it will, independently and without reliance upon
the Agent or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under each Loan Document. The Agent shall not
be required to keep itself informed as to the performance or observance by the
Borrower of any Loan Document or to inspect the Properties or books of the
Borrower or any Subsidiary. Except for notices, reports, and other documents
and information expressly required to be furnished to the Banks by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the affairs, financial
condition, or business of the Borrower or any Subsidiary (or any of their
Affiliates) which may come into the possession of the Agent or any of its
Affiliates.
SECTION 9.05. Indemnification. Notwithstanding anything to
the contrary herein contained, the Agent shall be fully justified in failing or
refusing to take any action hereunder unless it shall first be indemnified to
its satisfaction by the Banks against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, and
disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in any way relating to or arising out
of its taking or continuing to take any action. EACH BANK AGREES TO INDEMNIFY
THE AGENT (TO THE EXTENT NOT REIMBURSED BY THE BORROWER), ACCORDING TO SUCH
BANK'S COMMITMENT, FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES, AND
DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON,
INCURRED BY, OR ASSERTED AGAINST THE AGENT IN ANY WAY RELATING TO OR ARISING
OUT OF ANY LOAN DOCUMENT OR ANY ACTION TAKEN OR OMITTED BY THE AGENT UNDER ANY
LOAN DOCUMENT; PROVIDED THAT NO BANK SHALL BE LIABLE FOR ANY PORTION OF SUCH
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS,
SUITS, COSTS, EXPENSES, OR DISBURSEMENTS RESULTING FROM THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE PERSON BEING INDEMNIFIED; AND PROVIDED FURTHER, THAT
IT IS THE INTENTION OF EACH BANK TO INDEMNIFY THE AGENT AGAINST THE
CONSEQUENCES OF THE AGENT'S OWN
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NEGLIGENCE, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT, OR CONCURRENT, ACTIVE OR
PASSIVE. WITHOUT LIMITATION OF THE FOREGOING, EACH BANK AGREES TO REIMBURSE THE
AGENT PROMPTLY UPON DEMAND FOR ITS RATABLE SHARE OF ANY OUT-OF-POCKET EXPENSES
(INCLUDING REASONABLE ATTORNEYS' FEES) INCURRED BY THE AGENT IN CONNECTION WITH
THE PREPARATION, ADMINISTRATION, OR ENFORCEMENT OF, OR LEGAL ADVICE IN RESPECT
OF RIGHTS OR RESPONSIBILITIES UNDER, ANY LOAN DOCUMENT, TO THE EXTENT THAT THE
AGENT IS NOT REIMBURSED FOR SUCH EXPENSES BY THE BORROWER.
SECTION 9.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Banks and the Borrower and may be
removed at any time with cause by the Majority Banks. Upon any such
resignation or removal, the Majority Banks shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Majority Banks, and shall have accepted such appointment, within thirty (30)
days after the retiring Agent's giving of notice of resignation or the Majority
Banks' removal of the retiring Agent, then the retiring Agent may, on behalf of
the Banks, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States of America or of any State
thereof and having capital of at least $100,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article IX shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement.
SECTION 9.07. Agent's Reliance. The Borrower shall notify
the Agent in writing of the names of its officers and employees authorized to
request an Advance on behalf of the Borrower and shall provide the Agent with a
specimen signature of each such officer or employee. The Agent shall be
entitled to rely conclusively on such officer's or employee's authority to
request an Advance on behalf of the Borrower until the Agent receives written
notice from the Borrower to the contrary. The Agent shall have no duty to
verify the authenticity of the signature appearing on any Notice of Borrowing,
and, with respect to any oral request for an Advance, the Agent shall have no
duty to verify the identity of any Person representing himself as one of the
officers or employees authorized to make such request on behalf of the
Borrower. Neither the Agent nor any Bank shall incur any liability to the
Borrower in acting upon any telephonic notice referred to above which the Agent
or such Bank believes in good faith to have been given by a duly authorized
officer or other Person authorized to borrow on behalf of the Borrower or for
otherwise acting in good faith.
SECTION 9.08. Defaults. The Agent shall not be deemed to
have knowledge of the occurrence of a Default (other than the nonpayment of
principal of or interest hereunder or of any fees payable hereunder) unless the
Agent has received notice from a Bank or the Borrower specifying such Default.
In the event that the Agent receives such a notice of the occurrence of a
Default, the Agent shall give prompt notice thereof to the Banks and to the
Borrower (and shall give each Bank prompt notice of each such nonpayment);
provided that, failure of the Agent to give notice to the Borrower hereunder
shall in no event diminish the obligations of the Borrower hereunder. The
Agent shall (subject to Section 8.01 and 9.01) take such action as may be
expressly required hereunder with respect to such Default; provided that,
unless and until the Agent shall have received
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the directions referred to in Section 8.01, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable and in the best interest of
the Bank.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment or waiver of
any provision of this Agreement or the Notes or any Letter of Credit, nor
consent to any departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Majority Banks,
and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided however, that
no amendment, waiver or consent shall, unless in writing and signed by all the
Banks, do any of the following: (a) waive any of the conditions specified in
Section 4.02, (b) increase the Commitments of the Banks or subject the Banks to
any additional obligations, (c) reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder or the terms of any Letter
of Credit, (d) postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, (e)
change the definition of "Pro Rata Percentage," the percentage of the
Commitments or the aggregate unpaid principal amount of the Notes, or the
number or percentage of Banks, which shall be required for the Banks or any of
them to take any action hereunder, (f) amend this Section 10.01, or (g) alter
any Guaranty Agreement or Section 6.06 hereof; and provided, further, that no
amendment, waiver or consent shall, unless in writing and signed by the Agent
in addition to the Banks required above to take such action, affect the rights
or duties of the Agent under this Agreement or any Note.
SECTION 10.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including by telex
or telefacsimile transmission) and shall be effective when actually delivered,
or in the case of telex notice, when sent, and answerback is received, or in
the case of telefacsimile transmission, when received and telephonically
confirmed, addressed as follows: if to the Borrower, at its address at 2600
Citadel Plaza Drive, Houston, Texas 77018, Attention: Chief Executive Officer,
with a copy to Dow, Cogburn & Friedman, P.C., 9 Greenway Plaza, Suite 2300,
Houston, Texas 77046, Attention: Mr. Melvin Dow; if to any Bank, at its
address specified opposite its name on the signature page hereof; and if to the
Agent, at its address at 712 Main Street, Houston, Texas 77002, Attention: Mr.
George Smith; with a copy to 1111 Fannin, Houston, Texas 77002, Attention:
Manager, Loan Syndication Services; or, as to the Borrower, any Bank or the
Agent, at such other address as shall be designated by such party in a written
notice to the other parties.
SECTION 10.03. No Waiver; Remedies. No failure on the part
of any Bank or the Agent to exercise, and no delay in exercising, any right
under any Loan Document shall operate as a waiver thereof; nor shall any single
or partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
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<PAGE> 53
SECTION 10.04. Costs, Expenses and Taxes. The Borrower
agrees to pay on demand all costs and expenses in connection with the
preparation, execution, delivery, modification, waiver, and amendment of the
Loan Documents and the other documents to be delivered under the Loan
Documents, including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Agent and each Bank with respect thereto and with
respect to advising the Agent and each Bank as to its rights and
responsibilities under the Loan Documents; provided that, fees of counsel for
the Agent and the Banks for work performed in connection with the preparation,
execution and delivery of this Agreement and the other Loan Documents on the
Closing Date and all other work described in this sentence performed on or
prior to the Closing Date (together with routine post-closing matters, such as
preparation and delivery of closing packages), shall not exceed $40,000. In
the event of the occurrence of a Default, the Borrower further agrees to pay on
demand all costs and expenses, if any (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of the Loan
Documents and the other documents to be delivered under the Loan Documents,
including, without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this Section 10.04.
SECTION 10.05. Right of Set-off. Upon (i) the occurrence
and during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 8.01 to authorize
the Agent to declare the Notes due and payable pursuant to the provisions of
Section 8.01, each Bank is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Bank to or for the credit
or the account of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under any Loan Document, whether or not such
Bank shall have made any demand under this Agreement or such Note and although
such obligations may be unmatured. Each Bank agrees promptly to notify the
Borrower after any such set-off and application made by such Bank, provided
that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of each Bank under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Bank may have.
SECTION 10.06. Sharing of Payments, Etc. If any Bank shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of any Advance made by it (other
than pursuant to Sections 2.07, 2.10, 3.04 or 3.05) in excess of its Pro Rata
Percentage of payments on account of the Advances, such Bank shall forthwith
purchase from the other Banks such participations in the Advances made by them
as shall be necessary to cause such purchasing Bank to share the excess payment
ratably with each of them, provided however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Bank, such purchase
from each Bank shall be rescinded and such Bank shall repay to the purchasing
Bank the purchase price to the extent of such recovery together with an amount
equal to such Bank's ratable share (according to the proportion of (i) the
amount of such Bank's required repayment to (ii) the total amount so recovered
from the purchasing Bank) of any interest or other amount paid or payable by
the purchasing Bank in respect of the total amount so recovered.
SECTION 10.07. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower, the Agent and the
Banks (and a counterpart original has
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<PAGE> 54
been delivered to the Agent, for itself and each Bank, and to the Borrower)
when the Agent shall have been notified by each Bank that such Bank has
executed it and thereafter shall be binding upon and inure to the benefit of
the Borrower, the Agent and each Bank and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Banks.
SECTION 10.08. Assignments and Participations. (a) Each
Bank may assign all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitments
and the Note held by it and any interest held by it in a Letter of Credit) to
any financial institution (the "Assignee"); provided however, (i) prior to the
occurrence of an Event of Default, TCB shall not assign its rights and
obligations hereunder without the consent of the Borrower, which will not be
unreasonably withheld, if, after giving effect to such assignment, the
Commitment of TCB would be reduced to less than $80,000,000, (ii) prior to the
occurrence of an Event of Default, First Interstate shall not assign its rights
and obligations hereunder, without the consent of the Borrower, which will not
be unreasonably withheld, if, after giving effect to such assignment, the
Commitment of First Interstate would be reduced to less than $40,000,000, (iii)
each assignment made hereunder shall equal or exceed the lesser of (A)
$10,000,000 or (B) the remaining Commitment held by the Assigning Bank, and
(ii) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register (with a copy to the
Borrower), an Assignment and Acceptance Agreement in the form of Exhibit 10.08,
attached hereto (the "Assignment and Acceptance"), together with any Note
subject to such assignment. Upon such execution, delivery, acceptance, and
recordation by the Agent of such Assignment and Acceptance, from and after the
effective date specified in each Assignment and Acceptance, which effective
date shall be the date on which such Assignment and Acceptance is accepted by
the Agent, (A) the Assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Bank
under the Loan Documents, and (B) the Bank assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Loan Documents (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Bank's rights
and obligations under the Loan Documents, such Bank shall cease to be a party
thereto).
(b) By executing and delivering an Assignment and
Acceptance, the Bank assignor thereunder and the Assignee confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties, or representations made in or in connection with any
Loan Document or the execution, legality, validity, enforceability,
genuineness, sufficiency, or value of any Loan Document or any other instrument
or document furnished pursuant thereto; (ii) such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any other Subsidiary or the performance
or observance by the Borrower or any other Subsidiary of any of its respective
obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such Assignee confirms that it has received a
copy of the Loan Documents, together with copies of the Financial Statements
referred to in Section 5.02 and Section 6.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such Assignee,
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<PAGE> 55
independently and without reliance upon the Agent, such assigning Bank, or any
Bank and based on such documents and information as it shall deem appropriate
at the time, will continue to make its own credit decisions in taking or not
taking action under this Agreement; (v) such Assignee appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such
powers under any Loan Document as are delegated to the Agent by the terms
thereof, together with such powers as are reasonably incidental thereto; and
(vi) such Assignee agrees that it will perform in accordance with their terms
all of the obligations which by the terms of any Loan Document are required to
be performed by it as a Bank.
(c) The Agent shall maintain at its address referred to
in Section 10.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Banks and the Commitment of, and principal amount of the Borrowings owing
to, each Bank from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and
the Borrower, the Agent, and the Banks may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of the Loan
Documents. The Register shall be available for inspection by the Borrower or
any Bank at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank, together with any Note subject to such
assignment, the Agent, if such Assignment and Acceptance has been completed and
otherwise complies with Section 10.08(a), shall (i) accept such Assignment and
Acceptance; (ii) record the information contained therein in the Register; and
(iii) give prompt notice thereof to the Borrower. Simultaneously upon its
receipt of such notice, the Borrower at its own expense, shall execute and
deliver to the Agent in exchange for each surrendered Note a new Note to the
order of such Assignee in an amount equal to the Commitment assumed by it
pursuant to such Assignment and Acceptance and, if the assigning Bank has
retained Commitments hereunder, new Notes to the order of the assigning Bank in
an amount equal to the Commitments retained by it hereunder. The new Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of the surrendered Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit 2.02(c). Upon receipt by the Agent of each such new Note conforming to
the requirements set forth in the preceding sentences, the Agent shall return
to the Borrower each such surrendered Note marked to show that each such
surrendered Note has been replaced, renewed, and extended by such new Note.
(e) Each Bank may sell participations to one or more
financial institutions in or to all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitments and the Notes held by it), and no such sale of a participation
shall reduce such Bank's obligations to the Borrower hereunder.
SECTION 10.09. Limitation on Agreements. (a) All agreements
between the Borrower, the Agent, or any Bank, whether now existing or hereafter
arising and whether written or oral, are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of demand being made in
respect of an amount due under any Loan Document or otherwise, shall the amount
paid, or agreed to be paid, to the Agent or any Bank for the use, forbearance,
or detention of the money to be loaned under this Agreement, the Notes or any
other Loan Document or otherwise or for the payment or performance of any
covenant or obligation contained herein or in any
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<PAGE> 56
other Loan Document exceed the Highest Lawful Rate. If, as a result of any
circumstance whatsoever, fulfillment of or compliance with any provision hereof
or of any of such documents at the time performance of such provision shall be
due or at any other time shall involve exceeding the amount permitted to be
contracted for, taken, reserved, charged or received by the Agent or any Bank
under applicable usury law, then, ipso facto, the obligation to be fulfilled or
complied with shall be reduced to the limit prescribed by such applicable usury
law, and if, from any such circumstance, the Agent or any Bank shall ever
receive interest or anything which might be deemed interest under applicable
law which would exceed the Highest Lawful Rate, such amount which would be
excessive interest shall be applied to the reduction of the principal amount
owing on account of such Bank's Note or the amounts owing on other obligations
of the Borrower to the Agent or any Bank under any Loan Document and not to the
payment of interest, or if such excessive interest exceeds the unpaid principal
balance of any Note and the amounts owing on other obligations of the Borrower
to the Agent or any Bank under any Loan Document, as the case may be, such
excess shall be refunded to the Borrower. All sums paid or agreed to be paid
to the Agent or any Bank for the use, forbearance, or detention of the
indebtedness of the Borrower to the Agent or any Bank shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and spread
throughout the full term of such indebtedness until payment in full of the
principal (including the period of any renewal or extension thereof) so that
the interest on account of such indebtedness shall not exceed the Highest
Lawful Rate. Notwithstanding anything to the contrary contained in any Loan
Document, it is understood and agreed that if at any time the rate of interest
which accrues on the outstanding principal balance of any Note shall exceed the
Highest Lawful Rate, the rate of interest which accrues on the outstanding
principal balance of any Note shall be limited to the Highest Lawful Rate, but
any subsequent reductions in the rate of interest which accrues on the
outstanding principal balance of any Note shall not reduce the rate of interest
which accrues on the outstanding principal balance of any Note below the
Highest Lawful Rate until the total amount of interest accrued on the
outstanding principal balance of any Note equals the amount of interest which
would have accrued if such interest rate had at all times been in effect. The
terms and provisions of this Section 10.09 shall control and supersede every
other provision of all Loan Documents.
(b) The Banks and the Borrower agree that (i) if Article
1.04, Subtitle 1, Title 79 of the Revised Civil Statutes of Texas, 1925, as
amended, is applicable to the determination of the Highest Lawful Rate, the
indicated rate ceiling computed from time to time pursuant to Section (a) of
such Article shall apply, provided that, to the extent permitted by such
Article, the Agent may from time to time by notice to the Borrower revise the
election of such interest rate ceiling as such ceiling affects the then current
or future balances of the Advances; and (ii) the provisions of Chapter 15 of
Subtitle 3, Title 79, of the Revised Civil Statutes of Texas, 1925, as amended,
shall not apply to this Agreement or any Note.
SECTION 10.10. Severability. In case any one or more of the
provisions contained in any Loan Document to which the Borrower is a party or
in any instrument contemplated thereby, or any application thereof, shall be
invalid, illegal, or unenforceable in any respect, the validity, legality, and
enforceability of the remaining provisions contained therein, and any other
application thereof, shall not in any way be affected or impaired thereby.
Each covenant contained in any Loan Document to which the Borrower is a party
shall be construed (absent an express contrary provision herein) as being
independent of each other covenant contained therein, and
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<PAGE> 57
compliance with any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with one or more other covenants.
SECTION 10.11. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State
of Texas.
SECTION 10.12. SUBMISSION TO JURISDICTION; WAIVERS. THE
BORROWER IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-
EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF TEXAS, THE COURTS
OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF TEXAS, AND
APPELLATE COURTS FROM ANY THEREOF;
(b) WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT IN HARRIS
COUNTY, TEXAS, OR THAT SUCH PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND
AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH LEGAL
ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING OF A COPY THEREOF (BY
REGISTERED OR CERTIFIED MAIL OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL, POSTAGE
PREPAID) TO ITS ADDRESS SET FORTH IN SECTION 10.02 HEREOF OR TO SUCH OTHER
ADDRESS OF WHICH THE OTHER PARTIES HERETO SHALL HAVE BEEN NOTIFIED IN WRITING
BY THE BORROWER PURSUANT TO SECTION 10.02.
SECTION 10.13. Execution in Counterparts. This Agreement
may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement.
SECTION 10.14. Liability of Borrower. With respect to the
incurrence of certain liabilities hereunder and the making of certain
agreements by the Borrower as herein stated, such incurrence of liabilities and
such agreements shall be binding upon the Borrower only as a trust formed under
the Texas Real Estate Investment Trust Act pursuant to that certain Restated
Declaration of Trust dated March 23, 1988 (as it is amended from time to time),
and only upon the assets of such Borrower. No Trust Manager or officer or
holder of any beneficial interest in the Borrower shall have any personal
liability for the payment of any indebtedness or other liabilities incurred by
the Borrower hereunder or for the performance of any agreements made by the
Borrower hereunder, nor for any other act, omission or obligation incurred by
the Borrower or the Trust Managers except, in the case of a Trust Manager, any
liability arising from his own wilful misfeasance or malfeasance or gross
negligence.
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SECTION 10.15. FINAL AGREEMENT. THIS WRITTEN AGREEMENT, THE
GUARANTY, THE NOTES AND THE LETTERS OF CREDIT REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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<PAGE> 59
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
WEINGARTEN REALTY INVESTORS
(Borrower)
By:________________________________
Title:___________________________
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
(Agent)
By:_________________________________
Title:____________________________
[Address] TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
__________________________________ in its individual capacity
__________________________________
__________________________________
By:_________________________________
Title:____________________________
[Address] FIRST INTERSTATE BANK
OF TEXAS, N.A.
__________________________________
__________________________________
__________________________________
By:_________________________________
Title:____________________________
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<PAGE> 60
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "Amendment")
dated and effective as of January 31, 1995, is by and among Weingarten Realty
Investors, a Texas real estate investment trust (the "Borrower") and TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, a national banking association (in its
individual capacity, "TCB"), First Interstate Bank of Texas, N.A., a national
banking association ("First Interstate") and each other bank which is a party
to the Credit Agreement (collectively, with TCB and First Interstate, the
"Banks") and TCB as Agent for the Banks (in such capacity, the "Agent").
WHEREAS, the Agent, the Banks and the Borrower have entered
into that certain Credit Agreement dated as of November 22, 1994 (as it may be
hereafter amended or otherwise modified and in effect from time to time, the
"Credit Agreement"); and
WHEREAS, the Banks and the Borrower wish to amend the Credit
Agreement to extend the Commitment Limitation Period to March 31, 1995;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements hereinafter set forth, the Banks, the Agent and
the Borrower agree as follows:
SECTION 1. CONDITIONS TO EFFECTIVENESS OF AMENDMENT.
This Amendment shall become effective upon the following conditions:
(a) Each Bank shall have received on or before the
effective date of the Amendment (the "Effective Date") the Amendment, duly
executed by the Borrower, the Agent and the Banks;
(b) The Borrower hereby certifies that all of the
representations and warranties contained in Article V of the Credit Agreement
are true and correct on and as of the date hereof and will be true and correct
after giving effect to this Amendment;
(c) The Borrower hereby certifies that no event which
constitutes a Default or an Event of Default under the Credit Agreement, as
amended hereby, has occurred and is continuing, or would result from the
execution and delivery of this Amendment.
SECTION 3. CAPITALIZED TERMS. The capitalized terms
used herein which are defined in the Credit Agreement and not otherwise defined
herein shall have the meanings specified therein.
SECTION 4. RATIFICATION. The Credit Agreement, as
hereby amended, is in all respects ratified and confirmed, and all other rights
and powers created thereby or thereunder shall be and remain in full force and
effect.
<PAGE> 61
SECTION 5. COUNTERPARTS. This Amendment may be executed
in several counterparts, and each counterpart, when so executed and delivered,
shall constitute an original instrument, and all such separate counterparts
shall constitute but one and the same instrument.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
SECTION 7. NO PRIOR AGREEMENTS. THE CREDIT AGREEMENT,
THE NOTES, THIS AMENDMENT AND THE OTHER DOCUMENTS EXECUTED IN CONNECTION
HEREWITH CONSTITUTE A "LOAN AGREEMENT" AS DEFINED IN SECTION 26.02(A) OF THE
TEXAS BUSINESS & COMMERCE CODE, AND REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
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<PAGE> 62
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
BORROWER:
WEINGARTEN REALTY INVESTORS
By:_____________________________________
Title:__________________________________
BANK:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, Agent
By:_____________________________________
Title:__________________________________
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, in its individual
capacity
By:_____________________________________
Title:__________________________________
FIRST INTERSTATE BANK OF TEXAS, N.A.
By:_____________________________________
Title:__________________________________
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<PAGE> 1
EXHIBIT 12
WEINGARTEN REALTY INVESTORS
COMPUTATION OF RATIO OF EARNINGS AND FUNDS FROM OPERATIONS TO FIXED CHARGES
(DOLLAR AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
Nine Months Ended
Year Ended December 31 September 30
--------------------------------------------------------- --------------------
1989 1990 1991 1992 1993 1993 1994
-------- --------- -------- -------- --------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Income before extraordinary charge $13,620 $16,482 $17,958 $21,248 $36,249 $25,663 $32,680
Add:
Portion of rents representative of the
interest factor 357 374 433 485 521 392 380
Interest on indebtedness 17,430 19,938 20,157 18,689 10,046 7,508 8,131
Amortization of debt cost 740 755 513 513 261 202 167
-------- --------- -------- -------- --------- -------- --------
Income as adjusted $32,147 $37,549 $39,061 $40,935 $47,077 $33,765 $41,358
======== ========= ======== ======== ========= ======== ========
Fixed charges:
Interest on indebtedness $17,430 $19,938 $20,157 $18,689 $10,046 $7,508 $8,131
Capitalized interest 3,350 1,316 1,586 2,025 1,114 864 1,028
Amortization of debt cost 740 755 513 513 261 202 167
Portion of rents representative of the
interest factor 357 374 433 485 521 392 380
-------- --------- -------- -------- --------- -------- --------
Fixed charges $21,877 $22,383 $22,689 $21,712 $11,942 $8,966 $9,706
======== ========= ======== ======== ========= ======== ========
RATIO OF EARNINGS TO FIXED CHARGES 1.47 1.68 1.72 1.89 3.94 3.77 4.26
======== ========= ======== ======== ========= ======== ========
Income before extraordinary charge $13,620 $16,482 $17,958 $21,248 $36,249 $25,663 $32,680
Depreciation and amortization 15,914 17,699 19,019 21,291 23,382 17,108 19,667
-------- --------- -------- -------- --------- -------- --------
29,534 34,181 36,977 42,539 59,631 42,771 52,347
Interest on indebtedness 17,430 19,938 20,157 18,689 10,046 7,508 8,131
Funds from operations (as adjusted) $46,964 $54,119 $57,134 $61,228 $69,677 $50,279 $60,478
======== ========= ======== ======== ========= ======== ========
RATIO OF FUNDS FROM OPERATIONS TO
FIXED CHARGES 2.15 2.42 2.52 2.82 5.83 5.61 6.23
======== ========= ======== ======== ========= ======== ========
</TABLE>
<PAGE> 1
Exhibit (23)(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of Weingarten Realty Investors on Form S-3 of our report dated
February 24, 1994, appearing in the Annual Report on Form 10-K of Weingarten
Realty Investors for the year ended December 31, 1993, and to the reference to
us under the heading "Experts" in the Prospectus which is part of this
Registration Statement.
DELOITTE & TOUCHE LLP
Houston, Texas
February 8, 1995
<PAGE> 1
Exhibit 25(a)
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
[ ] A TRUSTEE PURSUANT TO SECTION 305(b)(2)
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
NOT APPLICABLE 74-0800980
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
600 TRAVIS STREET
HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip code)
CAROL KIRKLAND
712 MAIN STREET, 26TH FLOOR
HOUSTON, TEXAS 77002
(713) 216-2449
(Name, address and telephone number of agent for service)
WEINGARTEN REALTY INVESTORS
(Exact name of obligor as specified in its charter)
TEXAS 74-1464203
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2600 CITADEL PLAZA DRIVE
HOUSTON, TEXAS 77401
(Address of principal executive offices) (Zip Code)
SENIOR DEBT SECURITIES
(Title of the Indenture securities)
================================================================================
<PAGE> 2
Item 1. General Information.
Furnish the following information as to the Trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency - Washington, D.C.
Federal Reserve Bank of Dallas - Dallas, Texas
Federal Deposit Insurance Corporation - Washington, D.C.
National Bank Examiners - Dallas, Texas
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
Item 12. Indebtedness of the Obligor to the Trustee.
================================================================================
Col. A Col. B Col. C
- --------------------------------------------------------------------------------
Nature of Indebtedness Amount Outstanding Date Due
- --------------------------------------------------------------------------------
$150,000,000 revolving commitment $124,000,000 Nov. 21, 1997
================================================================================
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified with an asterisk below, on file with the
Commission, are incorporated herein by reference as exhibits
hereto.
* (1) Copy of Articles of Association of Texas Commerce
Bank National Association.
* (2) Copy of Certificate of Comptroller of the Currency
for Texas Commerce Bank National Association to
commence business.
* (3) Copy of Certificate of the Comptroller of the
Currency for Texas Commerce Bank National Association
to exercise corporate trust powers.
<PAGE> 3
* (4) Copy of existing bylaws of Texas Commerce
Bank National Association.
(5) Not applicable.
* (6) The consent of Texas Commerce Bank National
Association as required by Section 321(b) of the Act.
* (7) A copy of the latest report of condition of the
Trustee published pursuant to law or the requirements
of its supervising or examining authority.
(8) Not applicable.
(9) Not applicable.
* Incorporated by reference to the same exhibit number included
in the Form T-1 of Texas Commerce Bank, National Association
(Registration No. 33-87404).
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Texas Commerce Bank National Association, a national banking
association organized and existing under the laws of the United States, has
duly caused this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the city of Houston and State of
Texas, on the 9th day of February, 1995.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ EARL E. ALLEN, JR.
................................
Name: Earl E. Allen, Jr.
Title: Assistant Vice President
& Trust Officer
<PAGE> 1
Exhibit 25(b)
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
--------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
[ ] A TRUSTEE PURSUANT TO SECTION 305(b)(2)
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
NOT APPLICABLE 74-0800980
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
600 TRAVIS STREET
HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip code)
CAROL KIRKLAND
712 MAIN STREET, 26TH FLOOR
HOUSTON, TEXAS 77002
(713) 216-2449
(Name, address and telephone number of agent for service)
WEINGARTEN REALTY INVESTORS
(Exact name of obligor as specified in its charter)
TEXAS 74-1464203
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2600 CITADEL PLAZA DRIVE
HOUSTON, TEXAS 77401
(Address of principal executive offices) (Zip Code)
SUBORDINATED DEBT SECURITIES
(Title of the Indenture securities)
================================================================================
<PAGE> 2
Item 1. General Information.
Furnish the following information as to the Trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency - Washington, D.C.
Federal Reserve Bank of Dallas - Dallas, Texas
Federal Deposit Insurance Corporation - Washington, D.C.
National Bank Examiners - Dallas, Texas
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
Item 12. Indebtedness of the Obligor to the Trustee.
================================================================================
Col. A Col. B Col. C
- --------------------------------------------------------------------------------
Nature of Indebtedness Amount Outstanding Date Due
- --------------------------------------------------------------------------------
$150,000,000 revolving commitment $124,000,000 Nov. 21, 1997
================================================================================
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified with an asterisk below, on file with the
Commission, are incorporated herein by reference as exhibits
hereto.
* (1) Copy of Articles of Association of Texas Commerce
Bank National Association.
* (2) Copy of Certificate of Comptroller of the Currency
for Texas Commerce Bank National Association to
commence business.
* (3) Copy of Certificate of the Comptroller of the
Currency for Texas Commerce Bank National Association
to exercise corporate trust powers.
<PAGE> 3
* (4) Copy of existing bylaws of Texas Commerce
Bank National Association.
(5) Not applicable.
* (6) The consent of Texas Commerce Bank National
Association as required by Section 321(b) of the Act.
* (7) A copy of the latest report of condition of the
Trustee published pursuant to law or the requirements
of its supervising or examining authority.
(8) Not applicable.
(9) Not applicable.
* Incorporated by reference to the same exhibit number included
in the Form T-1 of Texas Commerce Bank, National Association
(Registration No. 33-87404).
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Texas Commerce Bank National Association, a national banking
association organized and existing under the laws of the United States, has
duly caused this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the city of Houston and State of
Texas, on the 9th day of February, 1995.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ EARL E. ALLEN, JR.
.................................
Name: Earl E. Allen, Jr.
Title: Assistant Vice President
& Trust Officer
