SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM T-3
FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER
THE TRUST INDENTURE ACT OF 1939
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CRIIMI MAE Inc.
(Name of Applicant)
11200 Rockville Pike
Rockville, Maryland 20852
(Address of principal executive offices)
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SECURITIES TO BE ISSUED UNDER THE INDENTURE TO BE QUALIFIED
TITLE OF CLASS AMOUNT
9 1/8 percent Senior Notes Due 2002 $100,000,000
Approximate date of proposed public offering:
November 18, 1997
Name and address of agent for service:
William B. Dockser
Chairman of the Board
CRIIMI MAE Inc.
11200 Rockville Pike
Rockville, Maryland 20852
(301) 816-2300
With a copy to:
Morris F. DeFeo, Jr., Esquire
Swidler & Berlin, Chartered
3000 K Street, N.W., Suite 300
Washington, DC 20007
(202) 424-7500
The obligor hereby amends this application for qualification on such date or
dates as may be necessary to delay its effectiveness until (i) the 20th day
after the filing of a further amendment which specifically states that it
shall supersede this amendment, or (ii) such date the Commission, acting
pursuant to Section 307(c) of the Act, may determine upon the written request
of the obligor.
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GENERAL
1. General information. Furnish the following as to the applicant:
(a) Form of organization: Corporation.
(b) State or other sovereign power under the laws of which organized:
Maryland.
2. Securities Act exemption applicable. State briefly the fact relied
upon by the applicant as basis for the claim that registration of the
indenture securities under the Securities Act of 1933 is not required: Not
Applicable.
AFFILIATIONS
3. Affiliates. Furnish a list or diagram of all affiliates of the
applicant and indicate the respective percentages of voting securities or
other bases of control.
NAME JURISDICTION OF INCORPORATION
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CRIIMI, Inc. Maryland
CRI Liquidating REIT, Inc. ("CRI") Maryland
(57 percent owned by CRIIMI MAE Inc.;
43 percent owned by the public);
CRI filed articles of dissolution
on 8/6/97
CRIIMI MAE Management, Inc. Maryland
CRIIMI MAE Financial Corporation Maryland
CRIIMI MAE Financial Corporation II Maryland
CRIIMI MAE Financial Corporation III Maryland
CRIIMI MAE QRS 1, Inc. Delaware
CRIIMI MAE Services, Inc. Maryland
(100 percent of nonvoting preferred
stock owned by the Company; 100
percent common stock owned by
officers of the Company)
CRIIMI MAE Services Limited Partnership Maryland
(CRIIMI MAE Management, Inc. owns a
62 percent interest as the sole general
partner; CRIIMI MAE Services, Inc. owns
a 38 percent interest as the sole limited
partner)
CRIIMI MAE Holding, Inc. Delaware
Certain directors and executive officers of the Company listed in Item 4
below may also be deemed affiliates of the Company by virtue of their
respective positions with CRIIMI MAE Inc.
2<PAGE>
<PAGE>03
MANAGEMENT AND CONTROL
4. Directors and executive officers. List the names and complete
mailing addresses of all directors and executive officers of the applicant
and all persons chosen to become directors or executive officers. Indicate
all offices with the applicant held or to be held by each person named.
NAME & ADDRESS POSITION
William B. Dockser Chairman of the Board of Directors
CRIIMI MAE Inc.
11200 Rockville Pike
Rockville, Maryland 20852
H. William Willoughby Director, President and Secretary
CRIIMI MAE Inc.
11200 Rockville Pike
Rockville, Maryland 20852
Garrett G. Carlson, Sr. Director
SCA Realty, Inc.
4501 Tamiami Trail, North
Barnett Center, Suite 216
Naples, Florida 33940
Larry H. Dale Director
27551 Craig Lane
Golden, Colorado 80401
G. Richard Dunnells Director
Holland & Knight
2100 Pennsylvania Avenue, N.W.
Suite 400
Washington, D.C. 20037
Robert J. Merrick Director
Chief Credit Officer
Signet Bank
7 North 8th Street
Richmond, Virginia 23219
Frederick J. Burchill Executive Vice President
CRIIMI MAE Inc.
11200 Rockville Pike
Rockville, Maryland 20852
Cynthia O. Azzara Chief Financial Officer, Senior
11200 Rockville Pike Vice President and CRIIMI MAE Inc.
Rockville, Maryland 20852 Treasurer
3<PAGE>
<PAGE>04
Brian L. Hanson Group Vice President
CRIIMI MAE Inc.
11200 Rockville Pike
Rockville, Maryland 20852
Douglas L. Cooper Vice President and Chief Underwriter
11200 Rockville Pike CRIIMI MAE Inc.
Rockville, Maryland 20852
Donald R. Drew Senior Vice President
CRIIMI MAE Inc.
11200 Rockville Pike
Rockville, Maryland 20852
David B. Iannarone Vice President and General Counsel
CRIIMI MAE Inc.
11200 Rockville Pike
Rockville, Maryland 20852
5. Principal owners of voting securities. Furnish the following
information as to each person owning 10 percent or more of the voting
securities of the applicant. As of November 14, 1997, there were no persons
believed to be the beneficial owners of 10 percent or more of the voting
securities of the applicant.
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NAME AND COMPLETE TITLE OF AMOUNT PERCENTAGE OF VOTING
MAILING ADDRESS CLASS OWNED OWNED SECURITIES OWNED
Not applicable.
4<PAGE>
<PAGE>05
UNDERWRITERS
6. Underwriters. Give the name and complete mailing address of (a) each
person who, within three years prior to the date of filing the application,
acted as an underwriter of any securities of the obligor which were
outstanding on the date of filing the application, and (b) each proposed
principal underwriter of the securities proposed to be offered. As to each
person specified in (a), give the title of each class of securities
underwritten.
(a) Common Stock, $0.01 par value per share, of the Company: Merrill
Lynch & Co., 250 Vesey Street, World Financial Center, North Tower,
NY, NY 10281; Friedman, Billings, Ramsey & Co., Inc., 1001 19th
Street North, Arlington, VA 22209; BT Alex. Brown, 1 South Street,
Baltimore, MD 21202; and Lehman Brothers Inc., 3 World Financial
Center, 4th Floor, New York, New York 10285.
Cumulative Convertible Preferred Stock, $0.01 par value per share,
of the Company: Friedman, Billings, Ramsey & Co., Inc., 1001 19th
Street North, Arlington, VA 22209; and BT Alex. Brown, 1 South
Street, Baltimore, MD 21202.
(b) Senior Notes due 2002 of the Company: Merrill Lynch & Co., 250
Vesey Street, World Financial Center, North Tower, NY, NY 10281: and
Lehman Brothers Inc., 3 World Financial Center, 4th Floor, New York,
New York 10285.
5<PAGE>
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CAPITAL SECURITIES
7. Capitalization. (a) Furnish the following information as to each
authorized class of securities of the applicant.
(a) As of November 14, 1997, the following table sets forth
information as to each authorized class of securities of the Company:
TITLE OF CLASS AMOUNT AUTHORIZED AMOUNT OUTSTANDING
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Common Stock, par value
$.01 par value per share(1) 60,000,000 shares 30,985,284 shares
Preferred Stock, par value
$.01 per share (2) 25,000,000 shares 1,928,006 shares
(1) Each share of Common Stock entitles the holder to one vote on each matter
submitted to a vote of stockholders of the Company.
(2) The Company is authorized to issue up to 25,000,000 shares of Preferred
Stock, $.01 par value per share, of the Company (the "Preferred Stock")
without further stockholder approval (except as may be required by
applicable law or stock exchange regulations). The Board of Directors
of the Company is authorized to determine without any further action by
the holders of Common Stock the dividend rights, dividend rate,
conversion rights, voting rights, rights and terms of redemption,
liquidation preferences and sinking fund terms of any series of Preferred
Stock as are permitted by Maryland law and the Company's Articles of
Incorporation and Articles Supplementary to the Articles of
Incorporation. The Board of Directors has designated 150,000 shares of
Preferred Stock as Series A Cumulative Convertible Preferred Stock,
$.01 par value per share (the "Series A Preferred Stock"), none of which
were outstanding as of November 14, 1997. The Board of Directors has
designated 3,000,000 shares of Preferred Stock as Series B Cumulative
Convertible Preferred Stock, $.01 par value per share (the "Series B
Preferred Stock"), 1,778,006 shares of which were outstanding as of
November 14, 1997. The Board of Directors has designated 300,000 shares
of Preferred Stock as Series C Cumulative Convertible Preferred Stock,
$.01 par value per share (the "Series C Preferred Stock"), 150,000 shares
of which were outstanding as of November 14, 1997.
6<PAGE>
<PAGE>07
INDENTURE SECURITIES
8. Analysis of indenture provisions. Insert at this point the analysis
of indenture provisions required under section 305(a)(2) [paragraph 42,191] of
the Act.
The Notes constitute a separate series of Senior Securities (which are
more fully described in the Prospectus dated October 28,1997 and Prospectus
Supplement dated November 18, 1997 ) to be issued pursuant to an Indenture
(the Indenture dated November 21, 1997 , as amended by the First Supplemental
Indenture dated November 21, 1997, are filed as exhibits to the applicant's
Form 8-K filed on November 19, 1997, collectively, the "Indenture") between
the Company and the State Street Bank and Trust Company, as trustee, and are
limited in aggregate principal amount to $100 million. The terms of the Notes
include those provisions contained in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (the
"TIA). The Notes are subject to all such terms and investors are referred to
the Indenture and the TIA for a statement thereof.
The Notes will rank pari passu in right of payment with all existing and
future unsecured and unsubordinated indebtedness of the Company and senior in
right of payment to all existing and future subordinated indebtedness of the
Company. The Notes will be effectively subordinated to the claims of any
secured lender to the extent of the value of the collateral securing such
indebtedness. The Notes will also be effectively subordinated to all existing
and future indebtedness and other liabilities of the company's Subsidiaries.
As of September 30, 1997, after giving pro forma effect to this Offering and
the application of the net proceeds therefrom as described in "use of
Proceeds," the Company and its subsidiaries had total indebtedness of
approximately $1.2 billion, of which approximately $1.1 billion was secured
indebtedness of the approximately $708.4 million was non-recourse indebtedness
of the Company's subsidiaries. Subject to certain limitations set forth in
the Indenture, the Indenture will permit the Company and its Restricted
Subsidiaries to incur additional secured and unsecured indebtedness. Such
additional indebtedness may consist of, but is not limited to, indebtedness
issued under the Indenture.
The Notes will mature on November 15, 2002. The Notes will be subject to
redemption at the option of the Company. The Company will not be required to
make any sinking fund payments with respect to the Notes. The Notes will be
issued only in fully registered, book-entry form without coupons, in
denominations of $1,000 and integral multiples thereof, except under certain
limited circumstances.
The Notes will bear interest at 9 1/8 percent per annum, from
November 21, 1997 or from the immediately preceding Interest Payment Date (as
defined below) to which interest has been paid, payable semi-annually in
arrears on each June 1 and December 1, commencing June 1, 1998, and on the
applicable Maturity Date, to the persons in whose names the applicable Notes
are registered in the security register applicable to the Notes at the close
of business on the date 15 calendar days prior to such payment day . Interest
on the Notes will be computed on the basis of a 360-day year of twelve 30-day
months. 7<PAGE>
<PAGE>08
The principal of each Note payable on the applicable Maturity Date will
be paid against presentation and surrender of such Note at the corporate trust
office of the Trustee, located initially c/o Two International Place, Boston,
Massachusetts 02110, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts.
9. Other obligors. Give the name and complete mailing address of any
person, other than the applicant, who is an obligor upon the indenture
securities: Not Applicable.
Contents of application for qualification. This application for
qualification comprises --
(a) Pages numbered 1 to 10, consecutively.
(b) The statement of eligibility and qualification on Form T-1 of the
Trustee under the Indenture to be qualified with respect to the Senior Notes,
which statement is filed herewith as Exhibit T3G and incorporated by
reference.
(c) The following exhibits in addition to those filed as a part of the
statement of eligibility and qualification of each trustee:
Exhibit
Number Description
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T3A Articles of Incorporation, as amended, of CRIIMI MAE Inc.(1)
T3B Amended and Restated Bylaws of CRIIMI MAE Inc. (2)
T3C Indenture between CRIIMI MAE Inc. and State Street Bank and
Trust Company, as Trustee, dated as of November 21, 1997 for
9 1/8 percent Senior Notes due 2002
T3C.1 First Supplemental Indenture dated as of November 21, 1997 to
Indenture between CRIIMI MAE Inc. and State Street Bank and
Trust Company, as Trustee, dated as of November 21, 1997 for
9 1/8 percent Senior Notes due 2002
T3D Not Applicable
T3E Rule 424(b)(5) Prospectus Supplement dated
November 18, 1997 (3)
T3F Cross-reference sheet showing the location in the indenture
of the provisions inserted therein pursuant to Section 310
through 318(a) of the Trust Indenture Act of 1939.
T3G Trustee's Statement of Eligibility on Form T-1 under the
Trust Indenture Act of 1939.
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(1) Incorporated herein by reference to CRIIMI MAE's Registration Statement
on Form S-3 (File No. 33-50679), as amended.
(2) Incorporated herein by reference to CRIIMI MAE's Registration Statement
on Form S-3 (File No. 333-38409).
(3) Incorporated herein by reference to CRIIMI MAE's filing with the
Commission made November 19, 1997.
8<PAGE>
<PAGE>09
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
applicant, CRIIMI MAE Inc., a corporation organized and existing under the
laws of the State of Maryland, has duly caused this application to be signed
on its behalf by the undersigned, thereunto duly authorized, and its seal to
be hereunto affixed and attested, all in the city of Rockville, and State of
Maryland, on the 19th day of November, 1997.
CRIIMI MAE Inc.
By: /s/ H. William Willoughby
----------------------------------
Name: H. William Willoughby
Title: President
9<PAGE>
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CRIIMI MAE Inc.
INDEX OF EXHIBITS
Exhibit
Number Description
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T3A Articles of Incorporation, as amended, of CRIIMI MAE Inc.(1)
T3B Amended and Restated Bylaws of CRIIMI MAE Inc. (2)
T3C Indenture between CRIIMI MAE Inc. and State Street Bank and
Trust Company, as Trustee, dated as of November 21, 1997 for
9 1/8 percent Senior Notes due 2002
T3C.1 First Supplemental Indenture dated as of November 21, 1997 to
Indenture between CRIIMI MAE Inc. and State Street Bank and
Trust Company, as Trustee, dated as of November 21, 1997 for
9 1/8 percent Senior Notes due 2002
T3D Not Applicable
T3E Rule 424(b)(5) Prospectus Supplement dated
November 18, 1997 (3)
T3F Cross-reference sheet showing the location in the indenture
of the provisions inserted therein pursuant to Section 310
through 318(a) of the Trust Indenture Act of 1939.
T3G Trustee's Statement of Eligibility on Form T-1 under the
Trust Indenture Act of 1939.
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(1) Incorporated herein by reference to CRIIMI MAE's Registration Statement
on Form S-3 (File No. 33-50679), as amended.
(2) Incorporated herein by reference to CRIIMI MAE's Registration Statement
on Form S-3 (File No. 333-38409).
(3) Incorporated herein by reference to CRIIMI MAE's filing with the
Commission made November 19, 1997.
10<PAGE>
<PAGE>
EXHIBIT T3C
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CRIIMI MAE INC.
Issuer
and
STATE STREET BANK AND TRUST COMPANY
Trustee
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INDENTURE
Dated as of November 19, 1997
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Senior Debt Securities
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<PAGE>
CRIIMI MAE INC.
Reconciliation and Tie between Trust Indenture Act of 1939 (the
"TIA" or "Trust Indenture Act") and the Indenture, dated as of November
21, 1997
Trust Indenture Act Section Indenture Section
Sec. 310(a)(1)....................................607
(a)(2)....................................607
(b).......................................607, 608
Sec. 312(a).......................................704
Sec. 312(c).......................................701
Sec. 313(a).......................................702
(c).......................................702
Sec. 314(a).......................................703
(a)(4)...................................1009
(c)(1)....................................102
(c)(2)....................................102
(e).......................................102
Sec. 315(b).......................................601
Sec. 316(a) (last sentence).......................101 ("Outstanding")
(a)(1)(A).................................502, 512
(a)(1)(B).................................513
(b).......................................508
Sec. 317(a)(1)....................................503
(a)(2)....................................504
Sec. 318(a).......................................113
(c).......................................113
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NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to
be a part of the Indenture.
Attention should also be directed to Section 318(c) of the
Trust
Indenture Act, which provides that the provisions of
Sections 310 to
and including 317 of the Trust Indenture Act are a part of and
govern every qualified indenture, whether or not physically
contained therein.
<PAGE>
<PAGE>
INDENTURE (this "Indenture"), dated as of November 19, 1997,
between CRIIMI MAE INC., a Maryland corporation (the "Issuer"), having
its principal offices at 11200 Rockville Pike, Rockville, Maryland
20852 and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company, as Trustee hereunder (the "Trustee"), having its Corporate
Trust Office at Two International Place, Financial Services, Corporate
Trust Department, Boston, Massachusetts 02110.
RECITALS OF THE ISSUER
The Issuer deems it necessary to issue from time to time for its
lawful purposes senior debt securities (hereinafter called the
"Securities") evidencing its unsecured 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, and the rules and regulations of the Securities
and Exchange Commission promulgated thereunder 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 Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings
assigned to
them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the TIA,
either
directly or by reference therein, have the meanings
assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the words "herein," "hereof," "hereto" and "hereunder" and
other
words of similar import refer to this Indenture as a whole
and
not to any particular Article, Section or other
subdivision; and
(5) the word "or" is always used inclusively.<PAGE>
<PAGE)
"Acquired Indebtedness" means Debt of a Person (i) existing at the
time the Person becomes a Subsidiary or (ii) assumed in connection with
the acquisition of assets from the Person, in each case, other than Debt
incurred in connection with, or in contemplation of, the Person becoming
a Subsidiary or that acquisition. Acquired Indebtedness 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 Issuer in respect of
certain taxes, assessments or other governmental charges imposed on
certain Holders and which are owing to such Holders.
"Affiliate" means, with respect to any specified Person (a) any
other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person or
(b) any other Person that owns, directly or indirectly, 10 percent or
more of such specified Person's Capital Stock or any executive officer
or director of any such specified Person or other Person. For the
purposes of this definition, "control," when used with respect to any
specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the place of publication,
customarily published on each day that is a Business Day in the place of
publication, whether or not published on days that are Legal Holidays in
the place of publication, and of general circulation in each place in
connection with which the term is used or in the financial community of
each such place. 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 day that is a
Business Day in the place of publication.
"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 Directors" means the board of directors of the Issuer or
any committee of that board duly authorized to act thereunder.
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<PAGE>
"Board Resolution" means a copy of one or more resolutions
certified by the Secretary or an Assistant Secretary of the Issuer to
have been duly adopted by the Board of Directors and to be in full force
and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" when used with respect to any Place of Payment or
any other 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 or
other day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or
executive order to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, partnership interests, participations, rights in or
other equivalents (however designated) of such Person's equity,
including any Preferred Stock, and any rights (other than debt
securities convertible into or exchangeable or exercisable for such
equity), warrants or options exchangeable or exercisable for or
convertible into such equity, whether now outstanding or issued after
the Issue Date.
"CEDEL" means Central 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 Exchange Act, or, if at any
time after execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the TIA, then the
body performing such duties on such date.
"Common Depositary" has the meaning specified in Section 304(b).
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation 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 Union 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 principal corporate trust 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 Two International Place, Boston, Massachusetts
02110, provided that with respect to presentment, transfer, exchange,
registration or payment of Securities, "Corporate Trust Office" is also
maintained at the date hereof at State Street Bank and Trust Company,
N.A., Corporate Trust Window, 15th Floor, 61 Broadway, New York, New
York 10006.
"Corporation" includes corporations and limited liability
companies, associations, partnerships, real estate investment trusts,
companies and business trusts.
<PAGE>
<PAGE>
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of any Person means, without duplication, any indebtedness
of such Person, whether or not contingent, in respect of (i) borrowed
money evidenced by bonds, notes, debentures or similar instruments,
(ii) indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned by such
Person, (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, (iv) all obligations under or in
respect of Interest Rate Agreements, (v) all Debt referred to in the
preceding clauses, of other Persons and all dividends of other Persons,
the payment of which is secured by (or for which the holders of such
Debt have an existing right, contingent or otherwise, to be secured by)
any Lien upon or with respect to property owned by such Person, even
though such Person has not assumed or become liable for the payment of
such Debt (the amount of such obligation being deemed to be the lesser
of the fair market value of such property or asset (as determined in
good faith by the Company's Board of Directors whose determination shall
be conclusive) or the amount of the obligation so secured), (vi) any
lease of property by such Person as lessee which is reflected in such
Person's consolidated balance sheet as a capitalized lease in accordance
with GAAP, (vii) all Redeemable Capital Stock of such Person valued at
the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued and unpaid dividends (for purposes hereof, the
"maximum fixed repurchase price" of any Redeemable Capital Stock which
does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Redeemable Capital Stock as if such Redeemable
Capital Stock were purchased on any date on which Debt shall be required
to be determined pursuant to the Indenture, and if such price is based
upon, or measured by, the fair market value of such Redeemable Capital
Stock, such fair market value shall be determined in good faith by the
board of directors of the issuer of such Redeemable Capital Stock),
(viii) all guarantees by such Person of Debt referred to in this
definition of any other Person or (ix) any amendment, supplement,
modification, deferral, renewal, extension, refunding or refinancing of
any Debt of the types referred to in clauses (i) through (viii) above,
(it being understood that "Debt" shall be deemed to be incurred by the
Company and its Restricted Subsidiaries on a consolidated basis whenever
the Company and its Restricted Subsidiaries on a consolidated basis
shall create, assume, guarantee or otherwise become liable in respect
thereof; Debt of a Restricted Subsidiary of the Company existing prior
to the time it became a Restricted Subsidiary of the Company shall be
deemed to be incurred upon such Restricted Subsidiary's becoming a
Restricted Subsidiary of the Company; and Debt of a person existing
prior to a merger or consolidation of such person with the Company or
any Restricted Subsidiary of the Company in which such person is the
successor to the Company or such Restricted Subsidiary shall be deemed
to be incurred upon the consummation of such merger or consolidation);
provided, however that the term Debt shall not include any such
indebtedness that has been the subject of an "in substance" defeasance
in accordance with GAAP.
<PAGE>
<PAGE>
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for
the payment of public and private debts.
"DTC" has the meaning specified in Section 304(b).
"ECU" means European Currency Units as defined and revised from
time to time by the Council of the European Community.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Community" means the European Economic Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Community.
"European Union" means the European Community, the European Coal
and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934 and any
successor statute thereto, in each case as amended from time to time,
and the rules and regulations of the Commission thereunder.
"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 or by
any recognized confederation or association of such governments.
"GAAP" means generally accepted accounting principles, as in effect
from time to time, as used in the United States applied on a consistent
basis; provided that solely for purposes of any calculation required by
the financial covenants contained herein, "GAAP" shall mean generally
accepted accounting principles as used in the United States on the date
hereof, applied on a consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States 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 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 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 depositary
receipt issued by a bank or trust company as custodian with respect<PAGE>
<PAGE>
to any such Government Obligation or held by such custodian for the
account of the holder of a depositary 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 depositary 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 depositary receipt.
"Holder" means, in the case of any Registered Security, the Person
in whose name such Security is registered in the Security Register and,
in the case of any 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 a particular series of
Securities established as contemplated by Section 301.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
"Interest," when used with respect to an Original Issue Discount
Security 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 1010, 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.
"Interest Rate Agreements" means interest rate protection
agreements in the form of a swap, cap, collar, floor, rate lock, or
similar agreement designed to protect against or manage exposure to
fluctuations in interest rates relating to any floating rate Debt of the
Company or its Subsidiaries.
"Investment," means, with respect to any Person, any direct or
indirect advance, loan or other extension of credit or capital
contribution to (by means of a transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase, acquisition, or ownership by such Person of
any Capital Stock, bonds, notes, debentures or other securities or
evidences of Debt issued or owned by, any other Person and all other
items that would be classified as investments on a balance sheet
prepared in accordance with GAAP. Investment shall include the fair
market value of the assets (net of liabilities) of any Restricted
Subsidiary of the Issuer at the time that such Restricted Subsidiary of
the Issuer is designated an Unrestricted Subsidiary and shall exclude
the fair market value of the assets (net of liabilities) of any
Restricted Subsidiary at the time that such Unrestricted Subsidiary is
designated a Restricted Subsidiary of the Issuer and any property
transferred to or from any Person shall be valued at its fair market
value at the time of such transfer, in each case as determined by the
Board of Directors of the Issuer in good faith.<PAGE>
<PAGE>
"Issue Date" means the date the Securities are first authenticated
and delivered under the Indenture.
"Issuer" means the Person named as the "Issuer" in the first
paragraph of this Indenture until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Issuer" shall mean such successor Person.
"Issuer Request" and "Issuer Order" mean, respectively, a written
request or order signed in the name of the Issuer by its Chairman of the
Board of Directors, its President or a Vice President (whether or not
designated by a number or a word or words added before or after the
title "vice president"), and by its Chief Financial Officer, Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Judgment Currency" has the meaning specified in Section 115.
"Legal Holiday" means a day that is not a Business Day.
"Make-Whole Amount" means, in connection with any optional
redemption of any Securities, the excess, if any, of: (i) the aggregate
present value as of the date of such redemption of each dollar of
principal being redeemed and the amount of interest (exclusive of
interest accrued to the date of redemption) that would have been payable
in respect of each such dollar if such redemption had not been made,
determined by discounting, on a semi-annual basis, such principal and
interest at the Reinvestment Rate (determined on the third Business Day
preceding the date notice of such redemption is given) from the
respective dates on which such principal and interest would have been
payable if such redemption had not been made, to the date of redemption;
over (ii) the aggregate principal amount of the Securities being
redeemed.
"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
or repurchase, notice of option to elect repayment or otherwise, and
includes the Redemption Date.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board of Directors, the President or a Vice President (whether or
not designated by a number or a word or words added before or after the
title "vice president") of the Issuer and by the Chief Financial
Officer, Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Issuer, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Issuer, or who may be an employee of or other counsel
for the Issuer and who shall be reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502.
<PAGE>
<PAGE>
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or the
Security
Registrar or delivered to the Trustee or the Security
Registrar
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 Issuer) in trust or set aside
and
segregated in trust by the Issuer (if the Issuer 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 Issuer has effected
defeasance
and/or covenant defeasance as provided in Article Fourteen;
and
(iv) Securities which have been paid pursuant to Section 306 or
in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture,
other
than any such Securities in respect of which there shall
have
been presented to the Trustee proof satisfactory to it that
such
Securities are held by a bona fide purchaser in whose hands
such
Securities are valid obligations of the Issuer;
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
or calculation, 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 Issuer, 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 <PAGE>
<PAGE>
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
Issuer or any other obligor upon the Securities or any Affiliate of the
Issuer 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 determination or calculation or in relying upon
any such request, demand,
authorization, direction, notice, consent or waiver, only Securities
which a Responsible Officer of 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 Issuer or any other
obligor upon the Securities or any Affiliate of the Issuer or of such
other obligor.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of (and premium and Additional Amounts, if any) or interest on
any Securities or coupons on behalf of the Issuer.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, joint-stock company, trust,
unincorporated organization, real estate investment trust or government
or any agency or political subdivision thereof.
"Place of Payment," when used with respect to any Security, means
the place or places where the principal of (and premium and Additional
Amounts, 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 Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however
designated) of such Person's preferred or preference stock, whether now
outstanding, or issued after the Issue Date, and including, without
limitation, all classes and series of preferred or preference stock of
such Person.
"Recourse Indebtedness" means Debt, other than Secured Debt as to
which Secured Debt the liability of the obligor thereon is limited to
its interest in the collateral securing such Secured Debt, provided that
no such Secured Debt shall constitute Recourse Indebtedness by reason of
provisions therein for imposition of full recourse liability on the
obligor for certain wrongful acts, environmental liabilities, or other
customary exclusions from the scope of so-called "non-recourse"
provisions.
<PAGE>
<PAGE>
"Redeemable Capital Stock" means any class or series of Capital
Stock that, either by its terms, by the terms of any security into which
it is convertible or exchangeable or by contract or otherwise, is, or
upon the happening of an event or passage of time would be, required to
be redeemed prior to the final Stated Maturity of the Notes or is
redeemable at the option of the holder thereof at any time prior to such
final Stated Maturity, or is convertible into or exchangeable for debt
securities at any time prior to such final Stated Maturity.
"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 or such Security.
"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 or such Security.
"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 any Registered Security of or within any series means
the date specified for that purpose as contemplated by Section 301,
whether or not a Business Day.
"Reinvestment Rate" means .50percent plus the arithmetic mean of
the yields under the heading "Week Ending" published in the most recent
Statistical Release under the caption "Treasury Constant Maturities" for
the maturity (rounded to the nearest month) corresponding to the
remaining life to maturity, as of the payment date of the principal
being redeemed or paid. If no maturity exactly corresponds to such
maturity, yields for the two published maturities most closely
corresponding to such maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purposes of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used. If the format or content of the
Statistical Release changes in a manner that precludes determination of
the Treasury yield in the above manner, then the Treasury yield shall be
determined in the manner that most closely approximates the above
manner, as reasonably determined by the Issuer.
"Repayment Date" means, when used with respect to any Security to
be repaid at the option of the Holder, the date fixed for such repayment
by or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to
be repaid at the option of the Holder, the price at which it is to be
repaid by or pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
<PAGE>
<PAGE>
president, any vice president (whether or not designated by a number or
a word or words added before or after the title "vice president"), the
secretary, any assistant secretary, the treasurer, any assistant
treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any other officer of the
Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter
is referred because of such officer's knowledge and familiarity with the
particular subject.
"Restricted Subsidiary" means any Subsidiary of the Issuer that has
not been designated as an "Unrestricted Subsidiary" in accordance with
the terms of the Indenture.
"Secured Debt" means, without duplication, Debt that is secured by
a mortgage, trust deed, deed of trust, deed to secure Debt, security
agreement, pledge, conditional sale or other title retention agreement,
capitalized lease, or other like agreement granting or conveying
security title to or a security interest in real property or other
tangible assets. Secured Debt shall be deemed to be incurred (i) on the
date the Issuer or any Subsidiary creates, assumes, guarantees or
otherwise becomes liable in respect thereof if it is secured in the
manner described in the preceding sentence on such date or (ii) on the
date the Issuer or any Subsidiary first secures such Debt in the manner
described in the preceding sentence if such Debt was not so secured on
the date it was incurred.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided; however,
that, if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities" with respect to the Indenture as to
which such Person is Trustee shall have the meaning stated in the first
recital of this Indenture and shall more particularly mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means any Restricted Subsidiary which is a
"significant subsidiary" (as defined in Article I, Rule 1-02 of
Regulation S-X, promulgated under the Securities Act of 1933, as
amended), of the Issuer.
"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 or any Additional
Amounts with respect thereto, 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, or such Additional Amounts are due and payable.<PAGE>
<PAGE>
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which reports yields on actively traded
United States government securities adjusted to constant maturities, or,
if such statistical release is not published at the time of any
determination under the Indenture, then such other reasonably comparable
index which shall be designated by the Issuer.
"Subsidiary" means a Person a majority of the voting power of the
equity securities, or a majority of the value of the equity interests,
of which are owned, directly or indirectly, by the Company and/or by one
or more Subsidiaries of the Company.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended and as in force at the date as of which this Indenture
was executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder; provided, however, that if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean only the Trustee with respect to Securities of
that series.
"United States" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is
a citizen or resident of the United States, a corporation, partnership
or other entity created or organized in or under the laws of the United
States or an estate or trust the income of which is subject to United
States federal income taxation regardless of its source.
"Unrestricted Subsidiary" means any Subsidiary of the Issuer that
the Issuer has classified as an "Unrestricted Subsidiary" and that has
not been reclassified as a Restricted Subsidiary, pursuant to the terms
of this Indenture.
"Unsecured Debt" means Debt of the Issuer or any Subsidiary that is
not Secured Debt.
"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. Except as
otherwise expressly provided in this Indenture, upon any application or
request by the Issuer to the Trustee to take any action under any
provision of this<PAGE>
<PAGE>
Indenture, the Issuer shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied
with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which
the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including
certificates delivered pursuant to Section 1009) 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 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 Issuer may be
based, insofar as it relates to legal matters, upon an Opinion of
Counsel, or a certificate or representations of or 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 Issuer
stating that the information as to such factual matters is in the
possession of the Issuer, 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<PAGE>
<PAGE>
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 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, but only 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 Issuer. Such instrument or
instruments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 315 of the TIA) conclusive in favor of the Trustee
and the Issuer and any agent of the Trustee or the Issuer, if made in
the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in
Section 1506.
(b) The fact and date of the execution by any Person of any
such
instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient and in accordance with such reasonable rules as
the Trustee may determine; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this
Section.
(c) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the
commencement and the date of the termination of holding the same, shall
be proved by the Security Register.
(d) The ownership, principal amount and serial numbers of
Bearer Securities held by any Person, and the date of the commencement
and the date of the termination of holding the same may be proved by the
production of such Bearer Securities or by a certificate executed, as,
depositary, by any trust company, bank, banker or other depositary
reasonably acceptable to the Issuer, wherever situated, if such
certificate shall be deemed by the Issuer and the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had
on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities,
if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Issuer may assume that such ownership
of any Bearer Security continues until<PAGE>
<PAGE>
(1) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3) such
Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership,
principal amount and serial numbers of Bearer Securities held by the
Person so executing such instrument in writing and the date of the
commencement and the date of the termination of holding the same may
also be proved in any other manner which the Trustee deems sufficient.
(e) If the Issuer shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Issuer may, at its option, in
or pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders of Registered Securities entitled to give such
request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Issuer shall have no obligation to do so. 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 Registered Securities of record at
the close of business on such record date shall be deemed to be Holders
for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date, provided that no
such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after
the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee, any Security Registrar, any Paying
Agent, any Authenticating Agent or the Issuer in reliance thereon,
whether or not notation of such action is made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND ISSUER. Any request,
demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with
(A) the Trustee by a Holder or by the Issuer shall be sufficient
for
every purpose hereunder if made, given, furnished or filed
in
writing to or with the Trustee at its Corporate Trust
Office, or
(B) the Issuer 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 Issuer addressed to it at the address of its
principal
office specified in the first paragraph of this Indenture or
at<PAGE>
<PAGE>
any other address previously furnished in writing to the
Trustee
by the Issuer.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture
provides for notice of any event to Holders of Registered Securities by
the Issuer 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 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,
waiver or Act required or permitted under this Indenture shall be in the
English language, except that, if the Issuer so elects, any published
notice may be in an official language of the country of publication.<PAGE>
<PAGE>
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 Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 109. SEVERABILITY CLAUSE. In case any provision in this
Indenture or in any Security or coupon shall be deemed 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 laws
of the State of New York.
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment
date, Stated Maturity or Maturity of any Security, or the last date on
which a Holder has the right to exchange Securities of a series that are
exchangeable, shall be a Legal Holiday at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any Security
or coupon other than a provision in any Security or coupon that
specifically states that such provision shall apply in lieu hereof),
payment of interest or any Additional Amounts or principal (and premium
or Make-Whole Amount, if any) need not be made at such Place of Payment
on such date and such Securities need not be exchanged on such date, but
such payment may be made and such Securities may be exchanged on the
next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date, Redemption
Date, Repayment Date or sinking fund payment date, or at the Stated
Maturity or Maturity or on such last day for exchange, provided that no
interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date, Repayment Date,
sinking fund payment date, Stated Maturity or Maturity or last day for
or exchange, as the case may be.
SECTION 113. CONFLICT WITH TRUST INDENTURE ACT. 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.
<PAGE>
<PAGE>
SECTION 114. COUNTERPARTS. This Indenture may be executed in
several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
SECTION 115. JUDGMENT CURRENCY. The Issuer agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the principal of, or premium or
interest, if any, or Additional Amounts on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency
with the Judgment Currency on the New York Banking Day preceding that on
which a final unappealable judgment is given and (b) the Issuer's
obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance
with clause (a)), in any currency other than the Required Currency,
except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall
be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by
which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable, and (iii) shall not be
affected by judgment being obtained for any other sum due under this
Indenture. For purposes of the foregoing, "New York Banking Day" means
any day except a Legal Holiday in The City of New York.
SECTION 116. NONRECOURSE. Unless otherwise provided in the Board
Resolution authorizing a particular series of Securities in accordance
with Section 301, no recourse under or upon any obligation, covenant or
agreement contained in this Indenture, in any Security or coupon
appertaining thereto, or because of any Debt evidenced thereby
(including, without limitation, any obligation or indebtedness relating
to the principal of, or premium or Make-Whole Amount, if any, interest
or any other amounts due, or claimed to be due, on any Security issued
hereunder), or for any claim based thereon or otherwise in respect
thereof, shall be had (i) against any Person which owns an interest,
directly or indirectly, in the Issuer, or (ii) against any promoter, as
such, or against any past, present or future shareholder, officer or
director, as such, of the Issuer or of any successor, either directly or
through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by
any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the
Holders thereof and as part of the consideration for the issue of the
Securities. Unless otherwise provided in the Board Resolution
authorizing a particular series of Securities in accordance with
Section 301, the Holders of the Securities hereunder acknowledge by the
acceptance of the Securities that their sole remedies under this
Indenture for any Default by the Issuer in the payment of the principal
of, or any premium or Make-Whole Amount, if any, interest or any
amounts due, or claimed to be due, on any Security, or otherwise, are
limited to claims against the property of the Issuer as provided in
Section 503 hereof.<PAGE>
<PAGE>
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 Issuer 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.
(TRUSTEE)
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 (9) 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 or any number of such
Securities shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be increased or
decreased to reflect exchanges. Any endorsement of 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 in such
manner and<PAGE>
<PAGE>
by such Person or Persons as shall be specified therein or in the Issuer
Order to be delivered 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 Issuer Order. If an Issuer Order pursuant
to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Issuer 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 Issuer and the Issuer 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, and any Additional Amounts in respect of,
any Security in temporary or 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 Issuer, the Trustee and any
agent of the Issuer and the Trustee shall treat as the Holder of such
principal amount of Outstanding Securities represented by a global
Security (a) in the case of a global Security in registered form, the
Holder of such global Security in registered form, or (b) in the case of
a global Security in bearer form, the Person or Persons specified
pursuant to Section 301.
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 (16) below), if so provided, may be
determined from time to time by the Issuer with respect to unissued
Securities of the series when issued from time to time):
<PAGE>
<PAGE>
(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 percentage of the principal amount at which the
Securities of
the series will be issued and, if other than the principal
amount
thereof, the portion of the principal amount thereof payable
upon
declaration of acceleration of maturity thereof;
(4) the date or dates, or the method for determining such date
or
dates, on which the principal of the Securities of the
series
shall be payable;
(5) 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;
(6) the place or places, if any, other than or in addition to
the
Corporate Trust Office of the Trustee, where (i) the
principal of
(and premium or Make-Whole Amount, if any), interest, if
any, on,
and Additional Amounts, if any, payable in respect of, the
Securities of the series shall be payable, (ii) any
Registered
Securities of the series may be surrendered for registration
of
transfer or exchange and (iii) notices or demands to or upon
the
Issuer in respect of the Securities of the series and this
Indenture may be served;
(7) 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 the Securities of the series may be redeemed, as
a
whole or in part, at the option of the Issuer, if the Issuer
is to
have such an option;
(8) the obligation, if any, of the Issuer to redeem, repay or
purchase
the 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<PAGE>
<PAGE>
unit or units or composite currency or currencies in which,
and
other terms and conditions upon which the Securities of the
series
shall be redeemed, repaid or purchased, as a whole or in
part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple
hereof, the denominations in which any Registered Securities
of
the series shall be issuable and, if other than
denominations of
$5,000 and any integral multiple thereof, the denomination
or
denominations in which any Bearer Securities of the series
shall
be issuable;
(10) if other than the Trustee, the identity of each Security
Registrar
and/or Paying Agent;
(11) [intentionally omitted];
(12) if other than Dollars, the Foreign Currency or Currencies in
which
payment of the principal of (and premium or Make-Whole
Amount, 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;
(13) whether the amount of payments of principal of (and premium
or
Make-Whole Amount, 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;
(14) whether the principal of (and premium or Make-Whole Amount,
if
any) or interest or Additional Amounts, if any, on the
Securities
of the series are to be payable, at the election of the
Issuer 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;
(15) provisions, if any, granting special rights to the Holders
of the
Securities of the series upon the occurrence of such events
as may
be specified;
<PAGE>
<PAGE>
(16) any deletions from, modifications of or additions to the
Events of
Default or covenants of the Issuer with respect to the
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;
(17) whether the Securities of the series will be in certificated
or
book-entry form and, if certificated, 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;
(18) 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;
(19) 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;
(20) 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;
(21) if the Securities of such series are to be issuable in
definitive
form (whether upon original issue or upon exchange of a
temporary
Security of such series) only upon receipt of certain
certificates
or other documents or satisfaction of other conditions, then
the
form and/or terms of such certificates, documents or
conditions;
<PAGE>
<PAGE>
(22) whether and under what circumstances the Issuer will pay
Additional Amounts 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 Issuer will have
the
option to redeem such Securities rather than pay such
Additional
Amounts (and the terms of any such option);
(23) with respect to any Securities that provide for optional
redemption or prepayment upon the occurrence of certain
events
(such as a change of control of the Issuer), (i) the
possible
effects of such provisions on the market price of the
Issuer's
securities or in deterring certain mergers, tender offers or
other
takeover attempts, and the intention of the Issuer to comply
with
the requirements of Rule 14e-1 under the Exchange Act and
any
other applicable securities laws in connection with such
provisions; (ii) whether the occurrence of the specified
events
may give rise to cross-defaults on other indebtedness such
that
payment on such Securities may be effectively subordinated;
and
(iii) the existence of any limitations on the Issuer's
financial
or legal ability to repurchase such Securities upon the
occurrence
of such an event (including, if true, the lack of assurance
that
such a repurchase can be effected) and the impact, if any,
under
the Indenture of such a failure, including whether and under
what
circumstances such a failure may constitute an Event of
Default;
(24) with respect to any Securities that may be issued in a
private
offering, the restrictions on transfer and legends relating
to
such Securities of the series and whether Securities of the
series
are entitled to registration or exchange rights; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons, if any,
appertaining to any Bearer Securities of the 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 the Board Resolution establishing the series (subject to Section 303
and the second paragraph of this Section 301) and set forth in an
Officers' Certificate or in any indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and,
unless otherwise provided, a series may be reopened, without the consent
of the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary
or an Assistant Secretary of the Issuer 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. CURRENCY, DENOMINATIONS. Unless otherwise provided
as contemplated by Section 301, the principal of, any premium, any Make-Whole
Amount and interest on and any Additional Amounts with respect to
the<PAGE>
<PAGE>
Securities shall be payable in Dollars. Unless otherwise provided as
contemplated by Section 301, Registered Securities denominated in
Dollars (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 denominated
in Dollars (other than Bearer Securities issued in global form, which
may be of any denomination) shall be issuable in denominations of $5,000
and any integral multiple thereof. Securities not denominated in
Dollars shall be issuable in such denominations as are established with
respect to such Securities in or pursuant to this Indenture.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities and any coupons appertaining thereto shall be executed on
behalf of the Issuer by its Chairman of the Board, its President or one
of its Vice Presidents (whether or not designated by a number or word or
words added before or after the title "vice president"), under its
corporate seal reproduced thereon, and attested by its Secretary or one
of its Assistant Secretaries. The signature of any of these officers on
the Securities and coupons may be manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Issuer shall
bind the Issuer, 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 Issuer may deliver the Securities of any series,
together with any coupon appertaining thereto, executed by the Issuer to
the Trustee for authentication, together with an Issuer Order for the
authentication and delivery of such Securities, and the Trustee in
accordance with the Issuer 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 (with
a copy to the Trustee), 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<PAGE>
<PAGE>
global Security. Except as permitted by Section 306, the Trustee shall
not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at one
time and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such Issuer Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as
interest rate or formula, maturity date, date of issuance and date from
which interest shall accrue. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive,
and (subject to TIA Section 315(a) through 315(d)) shall be fully
protected in relying upon:
(a) an Opinion of Counsel stating that:
(1) the terms and the form or forms of such Securities
and any
coupons have been established in conformity with the
provisions of this Indenture; and
(2) such Securities, together with any coupons
appertaining
thereto, when completed by appropriate insertions
and
executed and delivered by the Issuer 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 Issuer in the
manner
and subject to any conditions specified in such
Opinion of
Counsel, will constitute legal, valid and binding
obligations of the Issuer, 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 will entitle the Holders thereof to
the
benefits of this Indenture; and
(b) 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 an Issuer Order, or an
Opinion of Counsel<PAGE>
<PAGE>
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 Issuer, and the Issuer 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 Issuer, 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 Issuer may execute, and upon
Issuer 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. 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 Issuer 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 Issuer 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 nonmatured coupons appertaining thereto), the Issuer
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same<PAGE>
<PAGE>
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 this
Indenture. 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 ("DTC"). If any such temporary Security is
issued in global form, then such temporary global Security shall, unless
otherwise provided therein, be delivered to the London office of a
depositary or common depositary (the "Common Depositary"), for the
benefit of Euroclear and CEDEL, for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as
they may direct).
Without unnecessary delay, but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Issuer shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to
the principal amount of such temporary global Security, executed by the
Issuer. On or after the Exchange Date, such temporary global Security
shall be surrendered by the Common Depositary to the Trustee, as the
Issuer's agent for such purpose, to be exchanged, in whole or from time
to time in part, for definitive Securities without charge, and the
Trustee shall authenticate and deliver, in exchange for each portion of
such temporary global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and
of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for
any such temporary global Security shall be in bearer form, registered
form, permanent global bearer form or permanent global registered form,
or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the
beneficial owner thereof; provided, however, that, unless otherwise
specified in such temporary global Security, upon such presentation by
the Common Depositary, such temporary global Security is accompanied by
a certificate dated the Exchange Date or a subsequent date and signed by
Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange
Date or a subsequent date and signed by CEDEL as to the portion of such
temporary global Security held for its account then to be exchanged,
each in the form set forth in Exhibit A-2 to this Indenture or in such
other form as may be established pursuant to Section 301; and provided
further that definitive Bearer Securities shall be delivered in exchange
for a portion of a temporary global Security only in compliance with the
requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same
series and of like tenor following the Exchange Date when the account
holder instructs Euroclear or CEDEL, as the case may be, to request such
exchange on his behalf<PAGE>
<PAGE>
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 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 Issuer.
(c) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(c) shall govern the exchange of temporary
Securities issued in global form through the facilities of DTC. If any
such temporary Security is issued in global form, then such temporary
global security shall, unless<PAGE>
<PAGE>
otherwise provided therein, be delivered to DTC 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
Exchange Date, the Issuer shall deliver to the Trustee definitive
Securities, in aggregate principal amount equal to the principal amount
of such temporary global Security, executed by the Issuer. On or after
the Exchange Date, such temporary global Security shall be surrendered
by DTC to the Trustee, as the Issuer'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 registered 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.
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 DTC to request such exchange on his behalf. 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.
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 for such series occurring prior to the applicable
Exchange Date shall be payable to DTC on such Interest Payment Date, 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.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Issuer shall cause to be kept at the Corporate Trust Office of the
Trustee or in any office or agency of the Issuer 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 Issuer 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 Issuer 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<PAGE>
<PAGE>
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. The Issuer shall have the right to remove
and replace from time to time the Security Registrar for any series of
Securities; provided that no such removal or replacement shall be
effective until a successor Security Registrar with respect to such
series of Securities shall have been appointed by the Issuer and shall
have accepted such appointment by the Issuer. 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 Issuer in a Place of Payment for that series,
the Issuer 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. Whenever any such Registered Securities are so surrendered
for exchange, the Issuer 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 Issuer
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
Issuer and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as otherwise
provided in Section 1002, interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any
such office or agency in a permitted exchange for a Registered Security
of the same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record<PAGE>
<PAGE>
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
Issuer shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to
receive.
If provided as contemplated by Section 301, at the option of the
Holder, Registered Securities of such series may be exchanged for Bearer
Securities upon such terms and conditions as may be provided in or
pursuant to this Indenture with respect to such series. Whenever any
Securities are so surrendered for exchange, the Issuer shall execute,
and the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depositary for
any permanent global Security is DTC, then unless the terms of such
global Security expressly permit such global Security to be exchanged in
whole or in part for definitive Securities, a global Security may be
transferred, in whole but not in part, only to a nominee of DTC, or by a
nominee of DTC to DTC, or to a successor to DTC for such global Security
elected or approved by the Issuer or to a nominee of such successor to
DTC. If at any time DTC notifies the Issuer 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 Exchange Act if so required by applicable law or
regulation, the Issuer 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 Issuer
within 90 days after the Issuer 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
Issuer, 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 Issuer 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. The Issuer and the Trustee shall be
entitled to rely conclusively on information provided by DTC as to the
names of the beneficial holders and the amounts owned by such holders.
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<PAGE>
<PAGE>
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
day on which such interest may be so exchanged, the Issuer 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
Issuer Order with respect thereto to the Trustee, as the Issuer'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 Issuer, 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
Issuer or the Security Registrar) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Issuer 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 Issuer 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.
Except as otherwise provided in or pursuant to this Indenture, the
Issuer 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<PAGE>
<PAGE>
15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of the
mailing of the relevant notice of redemption and (B) if such Securities
are issuable as Bearer Securities, the day of the first publication of
the relevant notice of redemption or, if such Securities are also
issuable as Registered Securities and there is no publication, the
mailing of the relevant notice of redemption, or (ii) to register the
transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed,
or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered
Security of that series and like tenor, provided that such Registered
Security shall be simultaneously surrendered for redemption, or (iv) to
issue, register the transfer of or exchange any Security which has been
surrendered for repayment at the option of the Holder, except the
portion, if any, of such Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If
any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Issuer, together
with, in proper cases, such security or indemnity as may be required by
the Issuer or the Trustee to save each of them and any agent of either
of them harmless, the Issuer 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 Issuer 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 Issuer or the Trustee
that such Security or coupon has been acquired by a bona fide purchaser,
the Issuer 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 Issuer in its
discretion may, instead of issuing a new Security, with coupons
corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost
or stolen coupon appertains, pay such Security or coupon, provided,
however, that payment of principal of (and premium or Make-Whole Amount,
if any), and interest on and any Additional Amounts with respect to,
Bearer Securities shall, except as otherwise provided in<PAGE>
<PAGE>
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 in 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
Issuer 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 Issuer, 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 thereunder.
The provisions of this Section, as amended or supplemented, 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 RESERVED. Except
as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, interest on and
Additional Amounts with respect to 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 Issuer maintained for such purpose pursuant to
Section 1002; provided, however, that each installment of interest on
any Registered Security may at the Issuer'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.<PAGE>
<PAGE>
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 Issuer, at its election in each case, as provided in
clause (A) or (B) below:
(A) The Issuer 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
Issuer shall notify the Trustee in writing of the amount of
Defaulted
Interest proposed to be paid on each Registered Security of such
series and the date of the proposed payment (which shall not be
less than 20
days after such notice is received by the Trustee), and at the same
time
the Issuer 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 provided in this
clause. Thereupon the Trustee shall fix a Special Record Date for
the payment of
such Defaulted Interest which shall be not more than 15 days and
not less
than 10 days prior to the date of the proposed payment and not less
than
10 days after the receipt by the Trustee of the notice of the
proposed
payment. The Trustee shall promptly notify the Issuer of such
Special
Record Date and, in the name and at the expense of the Issuer,
shall
cause notice of the proposed payment of such Defaulted Interest and
the
Special Record Date therefor to be mailed, first class postage
prepaid,
to each Holder of Registered Securities of such series at his
address as
it appears in the Security Register not less than 10 days prior to
such
Special Record Date. The Trustee may, in its discretion, in the
name and
at the expense of the Issuer, 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
<PAGE>
<PAGE>
Defaulted Interest and the Special Record Date therefore 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 (B). 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.
(B) The Issuer 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 Issuer 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 Issuer, the
Trustee and any agent of the Issuer or the Trustee may treat the Person
in whose name such Registered Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and
premium or Make-Whole Amount, if any), and (subject to Sections 305 and
307) interest on and any Additional Amounts with respect to such
Registered Security and for all other purposes whatsoever, whether or
not such Registered Security be overdue, and neither the Issuer, the
Trustee nor any agent of the Issuer 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 Issuer, the Trustee and any agent of the
Issuer 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 any payment with respect to payment
thereof or on account thereof and for all other purposes whatsoever,
whether or not any payment with respect to such Security or coupon be
overdue, and neither the Issuer, the Trustee nor any agent of the Issuer
or the Trustee shall be affected by notice to the contrary.
<PAGE>
<PAGE>
No Holder of any beneficial interest in any global Security held on
its behalf by a depositary shall have any rights under this Indenture
with respect to such global Security, and such depositary may be treated
by the Issuer, the Trustee, and any agent of the Issuer or the Trustee
as the owner of such global Security for all purposes whatsoever. None
of the Issuer, 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 Issuer, the Trustee, or any agent of
the Issuer 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 canceled 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
Issuer may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Issuer 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
Issuer has not issued and sold, and all Securities so delivered shall be
promptly canceled by the Trustee. If the Issuer shall so acquire any of
the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except
as expressly permitted by this Indenture. Canceled Securities and
coupons held by the Trustee shall be periodically destroyed by the
Trustee and the Trustee shall deliver a certificate of such destruction
to the Issuer, unless by an Issuer Order the Issuer 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 shall be computed on the basis of
a 360-day year consisting of twelve 30-day months.
<PAGE>
<PAGE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall upon Issuer Request cease to be of further effect with
respect to any series of Securities specified in such Issuer 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 1010),
and the Trustee, upon receipt of an Issuer Order, and at the expense of
the Issuer, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture as to such series when
(a) either
(1) 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 in 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
Issuer and thereafter repaid to the Issuer or
discharged
from such Trust, as provided in Section 1003) have
been
delivered to the Trustee for cancellation; or
(2) all Securities of such series and, in the case of
(A) or
(B) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for
cancellation
(A) have become due and payable, or
(B) will become due and payable at their
Stated
Maturity within one year, or
(C) if redeemable at the option of the
Issuer,
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 Issuer,
and the Issuer, in the case of (A), (B) or (C)
above, has
irrevocably deposited or caused to be deposited with
the
Trustee as trust funds in trust for such purpose an
amount<PAGE>
<PAGE>
in the currency or currencies, currency unit or
units or
composite currency or currencies in which the
Securities
of such series are payable, sufficient to pay and
discharge the entire indebtedness on such Securities
and
such coupons not theretofore delivered to the
Trustee for
cancellation, for principal (and premium or Make-Whole
Amount, if any) and interest, 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,
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(c) the Issuer 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 Issuer to the Trustee and any predecessor Trustee
under Section 606, the obligations of the Issuer 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 amounts deposited
with the Trustee pursuant to Section 401 or Article 14 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 Issuer acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium or Make-Whole Amount, if any),
and any interest and Additional Amounts for whose payment such money has
or Government Obligations have been deposited with or received by the
Trustee, but such money and Government Obligations 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) unless such event is specifically
deleted or modified in or pursuant to the supplemental indenture, Board
Resolution or Officers' Certificate establishing the terms of such
series pursuant to this Indenture:<PAGE>
<PAGE>
(a) 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 or
Additional
Amounts or coupon becomes due and payable, and continuance
of
such default for a period of 30 days; or
(b) default in the payment of the principal of (or premium or
Make-
whole Amount, if any, on) any Security of that series when
it
becomes due and payable at its Maturity; or
(c) default in the performance, or breach, of the provisions of
Section 801; or
(d) default in the deposit of any sinking fund payment, when
and as
due by the terms of any Security of that series; or
(e) default in the performance, or breach, of any covenant or
warranty of the Issuer in this Indenture with respect to
any
Security of that series (other than a covenant or warranty
a
default in the performance or the breach of which is
elsewhere in
this Section specifically dealt with), and continuance of
such
default or breach for a period of 30 days after there has
been
given, by registered or certified mail, to the Issuer by
the
Trustee or to the Issuer and the Trustee by the Holders of
at
least 25 percent 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
(f) (i) any default in the payment of the principal, premium,
if any,
or interest on any Debt shall have occurred under any of
the
agreements, indentures or instruments under which the
Company or
any Restricted Subsidiary then has outstanding Debt in
excess of
$10 million when the same shall become due and payable in
full
and such default shall have continued after any applicable
grace
period and shall not have been cured or waived and, if not
already matured at its final maturity in accordance with
its
terms, the holder of such Debt shall have the right to
accelerate
such Debt, or (ii) an event of default as defined in any of
the
agreements, indentures or instruments of the Issuer
described in
clause (i) of this clause (f) shall have occurred and the
Debt
thereunder, if not already matured at its final maturity in
accordance with its terms, shall have been accelerated; or
(g) one or more judgments or orders shall be registered against
the
Issuer or any Significant Subsidiary or any of their
respective
properties for the payment of money, either individually or
in an
aggregate amount in excess of $10,000,000 and shall not be
discharged and either (i) an enforcement proceeding shall
have
been commenced by a creditor upon such judgment or order or
(ii)
there shall have been a period of 30 consecutive days
during
which a stay of enforcement of such judgment or order, by
reason<PAGE>
<PAGE>
of a pending appeal or otherwise, was not in effect; or
(h) the Issuer or any Significant Subsidiary pursuant to or
within the
meaning of any Bankruptcy Law:
(1) commences a voluntary case;
(2) consents to the entry of an order for relief against
it in
an involuntary case;
(3) consents to the appointment of a Custodian of it or
for all
or substantially all of its property; or
(4) makes a general assignment for the benefit of its
creditors; or
(i) a court of competent jurisdiction enters an
order or
decree under any Bankruptcy Law that:
(1) is for relief against the Issuer or
any
Significant Subsidiary in an
involuntary
case,
(2) appoints a Custodian of the Issuer or
any
Significant Subsidiary or for all or
substantially all of either of its
property,
or
(3) orders the liquidation of the Issuer
or any
Significant Subsidiary,
and the order or decree remains unstayed and
in
effect for 90 days;
(j) any holder of at least $10 million in aggregate principal
amount
of Debt of the Company or any Significant Subsidiary shall
commence judicial proceedings to foreclose upon assets of
the
Company or any Significant Subsidiary having an aggregate
fair
market value, individually or in the aggregate, in excess
of $10
million or shall have exercised any right under applicable
law or
applicable security documents to take ownership of any such
amounts in lieu of foreclosure; or
(k) any other Event of Default provided in or pursuant to this
Indenture 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<PAGE>
<PAGE>
Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25 percent 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 Issuer (and to the
Trustee if given, or such lesser amount as may be provided for in the
Securities of such series, by the Holders), and upon any such
declaration such principal or such lesser amount shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of not less than a
majority in principal amount of the Outstanding Securities of that
series, by written notice to the Issuer and the Trustee, may rescind and
annul such declaration and its consequences if:
(a) the Issuer 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):
(1) all overdue installments of interest on and any
Additional
Amounts payable in respect of all Outstanding
Securities of
that series and any related coupons,
(2) the principal of (and premium or Make-Whole Amount, if
any,
on) any Outstanding Securities of that series which
have
become due otherwise than by such declaration of
acceleration and interest thereon and any Additional
Amounts
with respect thereto at the rate or rates borne by or
provided for in such Securities,
(3) to the extent that payment of such interest or
Additional
Amounts 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
(4) 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
(b) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium or
Make-Whole Amount, if any) or interest on, and any Additional Amounts
with respect to Securities of that series which have become due solely
by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
<PAGE>
<PAGE>
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE. The Issuer covenants that if:
(a) 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
(b) default is made in the payment of the principal of (or
premium or Make-Whole Amount, if any, on) any Security of any series at
its Maturity,
then the Issuer will, upon demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of such Securities of such series and
coupons, the whole amount then due and payable on such Securities and
coupons for principal (and premium or Make-Whole Amount, if any) and
interest and Additional Amounts, with interest upon any overdue
principal (and premium or Make-Whole Amount, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon any
overdue installments of interest 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 Issuer 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 Issuer or any other obligor
upon such Securities and any related coupons and collect the monies
adjudged or decreed to be payable in the manner provided by law out of
the property of the Issuer or any other obligor upon such Securities and
any related coupons 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 therein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuer or any other obligor upon the
Securities or the property of the Issuer 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 Issuer for the payment of
overdue principal, premium or Make-Whole Amount, if any, or interest or
Additional Amounts) shall be entitled and empowered, by intervention in
such proceeding or otherwise:
<PAGE>
<PAGE>
(a) to file and prove a claim for the whole amount, or such
lesser
amount as may be provided for in the Securities of such
series,
of principal (and premium or Make-Whole Amount, if any) and
interest and Additional Amounts, if any, owing and unpaid
in
respect of the Securities and any related coupons and to
file
such other 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
(b) to collect and receive any monies of 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 the
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 or
Make-Whole Amount, 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;
<PAGE>
<PAGE>
SECOND: To the payment of the amounts then due and unpaid
upon the
Securities and coupons for principal (and premium or Make-Whole
Amount,
if any) and interest 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 or Make-Whole Amount, if any), interest and Additional
Amounts,
respectively; and
THIRD: The balance, if any, to the Issuer.
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:
(a) such Holder has previously given written notice to the
Trustee of
a continuing Event of Default with respect to the
Securities of
that series;
(b) the Holders of not less than 25 percent 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;
(c) such Holder or Holders have offered to the Trustee
indemnity
reasonably satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with
such
request;
(d) the Trustee for 60 days after its receipt of such notice,
request
and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been
given to the Trustee during such 60-day period by the
Holders of
a majority in principal amount of the Outstanding
Securities of
that series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture or any Security to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to
seek to obtain priority or preference over any other of such Holders or
to enforce any right under this Indenture, except in the manner herein
provided and for the equal
and ratable benefit of all such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM OR MAKE-WHOLE AMOUNT, IF ANY, 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 or
Make-Whole Amount, if any) and (subject to Sections 305 and 307)
interest on, and any Additional Amounts<PAGE>
<PAGE>
in respect of, such Security or payment of such coupon on the respective
Stated Maturity or Maturities specified in such Security or coupon (or,
in the case of redemption, on the Redemption Date or, in the case of
repayment, on the Repayment 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 Issuer, 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 each Holder 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 any Holder may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or
by such Holder 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 and any related coupons, provided that
(a) such direction shall not be in conflict with any rule of
law or
with this Indenture or with the Securities of any series,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
<PAGE>
<PAGE>
(c) 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
(a) in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on or Additional Amounts
payable in
respect of any Security of such series or any related
coupons, or
(b) 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 Issuer
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
Issuer (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 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 25
percent 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 or Make-Whole Amount, if any) or interest or
Additional Amounts, if any 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 or, in the case of
repayment, on or after the Repayment Date).
<PAGE>
<PAGE>
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 30 days after the
occurrence of any default hereunder with respect to the Securities of
any series for which it is acting as trustee, the Trustee shall transmit
in the manner and to the extent provided in TIA Section 313(c), notice
of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of (or premium or
Make-Whole Amount, if any) or interest on 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 best 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(d) with respect to the Securities and coupons of such
series, no such notice to Holders shall be given until at least 60 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to the Securities of
such series.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions
of TIA Section 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, 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;
(b) any request or direction of the Issuer mentioned herein
shall be
sufficiently evidenced by an Issuer Request or Issuer Order
(other than delivery of any Security, together with any
coupons
appertaining thereto, to the Trustee for authentication and
delivery pursuant to Section 303 which shall be
sufficiently
evidenced as provided therein) and any resolution of the
Board of
Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee
shall deem it desirable that a matter be proved or
established
prior to taking, suffering or omitting any action
hereunder, the
Trustee (unless other evidence be herein specifically
prescribed)
may, in the absence of bad faith on its part, rely upon an
Officers' Certificate;
<PAGE>
<PAGE>
(d) the Trustee may consult with counsel and the written advice
of
such counsel or any Opinion of Counsel shall be full and
complete
authorization and protection in respect of any action
taken,
suffered or omitted by it hereunder in good faith and in
reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of
the
rights or powers vested in it by this Indenture at the
request or
direction of any of the Holders 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;
(f) the Trustee shall not be bound to make any investigation
into the
facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or
other
paper or document, but the Trustee, in its discretion, may
make
such further inquiry or investigation into such facts or
matters
as it may see fit, and, if the Trustee shall determine to
make
such further inquiry or investigation, it shall be entitled
to
examine the books, records and premises of the Issuer,
personally
or by agent or attorney following reasonable notice to the
Issuer;
(g) the Trustee may execute any of the trusts or powers
hereunder or
perform any duties hereunder either directly or by or
through
agents or counsel and the Trustee shall not be responsible
for
any misconduct or negligence on the part of any agent or
counsel
appointed with due care by it hereunder; and
(h) subject to Sections 315(a) through 315(d) of the TIA, the
Trustee
shall not be charged with knowledge of any Event of Default
described in Section 501(d), (e), (f), (g) or (h) hereof
unless a
Responsible Officer of the Trustee shall have actual
knowledge of
such Event of Default.
The Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee.
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<PAGE>
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Securities, except
the Trustee's certificate of authentication, and in any coupons shall be
taken as the statements of the Issuer, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities or coupons, except that the
Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of
Eligibility and Qualification on Form T-1 supplied to the Issuer are
true and correct, subject to the qualifications set forth therein.
Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Issuer of Securities or the proceeds
thereof.
SECTION 604. MAY HOLD SECURITIES. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the
Trustee or the Issuer, 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 of the TIA, may otherwise deal with the
Issuer with the same rights it would have if it were not Trustee, Paying
Agent, Security Registrar, Authenticating Agent or such other agent.
SECTION 605. MONEY HELD IN TRUST. Except as provided in
Section 402 and Section 1003, 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 Issuer.
SECTION 606. COMPENSATION AND REIMBURSEMENT. The Issuer agrees:
(a) to pay to the Trustee from time to time reasonable
compensation
for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law
in
regard to the compensation of a trustee of an express
trust);
(b) 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
(c) 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.
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<PAGE>
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(f) or Section 501(g),
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 Issuer
under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the payment of principal of (or
premium or Make-Whole Amount, if any) or interest or any Additional
Amounts on particular Securities or any related coupons.
The provisions of this Section shall survive the termination of
this Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED ELIGIBILITY; CONFLICTING
INTERESTS. There shall at all times be a Trustee hereunder which shall
be eligible to act as Trustee under TIA Section 310(a)(1) and shall have
or be wholly owned by an entity having a combined capital and surplus of
at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or the requirements of
Federal, state, territorial or District of Columbia supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Issuer. If any 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 with respect to such series.
(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 Issuer.
(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
Issuer
or by any Holder of a Security who has been a bona
fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 607 and
shall fail to resign after written request therefor by
the
Issuer 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, (A) the Issuer by or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee with
respect to all Securities, or (B) 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 of such series 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 Issuer,
by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall comply with the
applicable requirements of Section 609. 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 Issuer and
the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 609, become the successor Trustee
with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Issuer. If no
successor Trustee with respect to the Securities of any series shall
have been so appointed by the Issuer or the Holders of Securities and
accepted appointment in the manner provided in Section 609, 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 Issuer 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<PAGE>
<PAGE>
series in the manner provided for notices to the Holders of Securities
in Section 106. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of
its Corporate Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee shall
execute, acknowledge and deliver to the Issuer 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 Issuer or the successor
Trustee, such retiring Trustee shall, upon, payment of its charges,
execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder, subject nevertheless
to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Issuer, 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 Trustee's
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 Issuer 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.<PAGE>
<PAGE>
(c) Upon request of any such successor Trustee, the Issuer
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section,
as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any Corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any Corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Corporation succeeding to all or
substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such Corporation
shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities or coupons so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities or coupons.
In case any Securities or coupons shall not have been authenticated by
such predecessor Trustee, any such successor Trustee may authenticate
and deliver such Securities or coupons, in either its own name or that
of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. APPOINTMENT OF 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 or pursuant to Section 306 issued
upon original issue, 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 Issuer. Wherever
reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certification 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 Issuer 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 or be
wholly owned by an entity having a combined capital and surplus of not
less than $50,000,000 and subject to<PAGE>
<PAGE>
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 Issuer. 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 Issuer. 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 Issuer 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 Issuer 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:
<PAGE>
<PAGE>
This is one of the Securities of the series designated
therein
referred to in the within-mentioned Indenture.
(TRUSTEE)
as Trustee
By:
--------------------------
as Authenticating Agent
By:
--------------------------
Authorized Signatory
If all of the Securities of any series may not be originally issued
at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Issuer wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested in
writing (which writing need not be accompanied by or contained in an
Officers' Certificate by the Issuer), shall appoint in accordance with
this Section an Authenticating Agent having an office in a Place of
Payment designated by the Issuer with respect to such series of
Securities.
ARTICLE SEVEN
HOLDERS' LIST AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every
Holder of Securities or coupons, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor an 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(c), 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. Upon qualification of this
Indenture under the TIA:
(a) Within 60 days after December 31 of each year commencing
with the first December 31 following the first issuance of Securities
pursuant to Section 301, if required by Section 313(a) of the TIA, the
Trustee shall transmit, pursuant to Section 313(c) of the TIA, a brief
report dated as of such December 31 with respect to any of the events
specified in said Section 313(a) which may have occurred since the later
of the immediately preceding December 31 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(a) of the TIA at the times specified therein.
<PAGE>
<PAGE>
(c) Reports pursuant to this Section shall be transmitted in
the manner and to the Persons required by Sections 313(c) and 313(d) of
the TIA.
SECTION 703. REPORTS BY ISSUER. Upon qualification of this
Indenture under the TIA, the Issuer will, pursuant to TIA
Section 314(a):
(a) file with the Trustee, within 30 days after the Issuer 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 Issuer may be
required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Issuer is not required to
file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act 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;
(b) 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 Issuer with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations; and
(c) transmit by mail to the Holders of Securities, within 30
days after the filing thereof with the Commission, 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 Issuer
pursuant to Section 1008 and paragraphs (a) and (b) of this Section as
may be required by rules and regulations prescribed from time to time by
the Commission.
SECTION 704. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS. The Issuer will furnish or cause to be furnished to the
Trustee:
(a) semiannually, not later than 15 days after the Regular
Record Date for interest of each series of Securities, a list, in such
form as the Trustee may reasonably require, of the names and addresses
of the Holders of Registered Securities of such series as of such
Regular Record Date, or if there is no Regular Record Date for interest
for such series of Securities, semiannually, upon such dates as are set
forth in the Board Resolution or indenture supplemental hereto
authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer 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.
<PAGE>
<PAGE>
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF ISSUER AND SALES,
LEASES AND CONVEYANCE PERMITTED SUBJECT TO CERTAIN CONDITIONS. The
Issuer 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 (a) the Issuer shall be the continuing
Corporation, or the successor Corporation or its transferees or
assignees of such assets (if other than the Issuer) formed by or
resulting from any such consolidation or merger or which shall have
received the transfer of such assets by lease (subject to the continuing
obligations of Issuer set forth in Section 802) or otherwise, either
directly or indirectly, shall expressly assume the payment of the
principal of (and premium or Make-Whole Amount, if any) and interest on
all the Securities, and the due and punctual performance and observance
of all of the covenants and conditions in this Indenture; (b) the
successor Corporation formed by or resulting from any such consolidation
or merger or which shall have received the transfer of assets pursuant
to this Section 801 shall be a United States Corporation, and
(c) immediately after giving effect to such transaction and treating any
Debt which becomes an obligation of the Issuer or any Restricted
Subsidiary as a result thereof as having been incurred by the Issuer or
such Restricted 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 such 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 Issuer 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
Issuer, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to
the Trustee; and, upon the order of such successor Corporation, instead
of the Issuer, 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 Issuer 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.
<PAGE>
<PAGE>
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 Issuer,
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:
(a) to evidence the succession of another Person to the Issuer
or the addition of another Person and the assumption by any such
successor or additional Person of the covenants of the Issuer herein and
in the Securities; or
(b) to add to the covenants of the Issuer 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 Issuer; or
(c) 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
(d) 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 or any Additional Amounts with respect to
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 <PAGE>
<PAGE>
adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(e) 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
(f) to secure the Securities; or
(g) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
(h) 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
(i) 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
(j) 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 Issuer and the
Trustee, the Issuer, 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:
(a) change the Stated Maturity of the principal of (or premium
or Make-Whole Amount, if any, on) or any installment of principal of or
interest on or any Additional Amounts with respect to, 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 Issuer to pay Additional<PAGE>
<PAGE>
Amounts pursuant to Section 1010 (except as contemplated by
Section 801(a) and permitted by Section 901(a)), 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 the principal of, any premium
or interest on, or any Additional Amounts with respect to any Security
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
(b) 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
(c) modify any of the provisions of this Section, Section 513
or Section 1011, 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. As a condition
to 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 (subject to TIA Section 315) 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<PAGE>
<PAGE>
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 following the
qualification of the Indenture under the provisions of the TIA, shall
conform to the requirements of the TIA 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 Issuer shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Issuer, to
any such supplemental indenture may be prepared and executed by the
Issuer and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES. Promptly after
the execution by the Issuer and the Trustee of any supplemental
indenture pursuant to the provisions of Section 902, the Issuer shall
give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in
general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM OR MAKE-WHOLE AMOUNT,
IF ANY, INTEREST AND ADDITIONAL AMOUNTS. The Issuer covenants and
agrees for the benefit of the Holders of each series of Securities that
it will duly and punctually pay the principal of (and premium or Make-Whole
Amount, if any) and interest on 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 any Bearer Securities on or
before Maturity, other than Additional Amounts, if any, payable as
provided in Section 1010 in respect of principal of (or premium or Make-Whole
Amount, 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 Issuer, 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 Issuer 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,<PAGE>
<PAGE>
where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Issuer
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 Issuer will maintain: (A) in the Borough of Manhattan, New York
City, an office or agency where any Securities of that series may be
presented or surrendered for payment, where any 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 Issuer in respect of the Securities of that
series and this Indenture may be served and where Bearer Securities of
that series and related coupons may be presented or surrendered for
payment in the circumstances described in the following paragraph (and
not otherwise); (B) subject to any laws or regulations applicable
thereto in a Place of Payment for that series which is located outside
the United States, an office or agency where Securities of that series
and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of
that series pursuant to Section 1010), 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 Issuer 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
Issuer in respect of the Securities of that series and this Indenture
may be served. The Issuer 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 Issuer 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 1010) at the offices
specified in the Security in Europe, and the Issuer hereby appoints the
same as its agent to receive such respective presentations, surrenders,
notices and demands, and the Issuer 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 Issuer 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 amounts owing with respect to any Bearer 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 1010) shall be
made at the office of the designated agent of the<PAGE>
<PAGE>
Issuer'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 Issuer in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar
restrictions, as evidenced by an Opinion of Counsel.
The Issuer 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
designations or rescission shall in any manner relieve the Issuer 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 Issuer 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 Issuer hereby designates as a Place of Payment
for each series of Securities the office or agency of the Issuer in the
Borough of Manhattan, New York City, 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 Issuer 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
Issuer shall at any time act as its own Paying Agent with respect to any
series of any Securities and any related coupons, it will, on or before
each due date of the principal of (and premium or Make-Whole Amount, if
any), or interest on 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 or Make-Whole Amount, 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 Issuer 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 or Make-Whole Amount, 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 or Make-Whole Amount, if any) or interest or Additional
Amounts, so becoming due, such sum to be held in trust<PAGE>
<PAGE>
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 Issuer will promptly notify the Trustee of its action or
failure so to act.
The Issuer 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 or Make-Whole Amount, 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 Issuer (or
any
other obligor upon the Securities) in the making of any
such
payment of principal (and premium or Make-Whole Amount, if
any)
or interest 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 Issuer may at any time, for the purpose of obtaining the
satisfaction
and discharge of this Indenture or for any other purpose, pay, or by
Issuer Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Issuer 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 Issuer 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 Issuer, in trust for the payment of the principal of (and premium or
Make-Whole Amount, if any) or interest on, or any Additional Amounts in
respect of, any Security of any series or any related coupon and
remaining unclaimed for two years after such principal (and premium or
Make-Whole Amount, if any), interest or Additional Amounts have become
due and payable shall be paid to the Issuer upon Issuer Request or (if
then held by the Issuer) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment of such principal of (and
premium or Make-Whole Amount, 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 Issuer 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 Issuer 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 Issuer.
<PAGE>
<PAGE>
SECTION 1004. EXISTENCE. Subject to Article Eight, the Issuer
will, and will cause its Restricted Subsdidiaries to, do or cause to be
done all things necessary to preserve and keep in full force and effect
their respective existence, rights and franchises; provided, however,
that the Issuer and any Restricted Subsidiary shall not be required to
preserve any right or franchise if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Issuer or such Restricted Subsidiary and
that the loss thereof is not disadvantageous in any material respect to
the Holders.
SECTION 1005. MAINTENANCE OF PROPERTIES. The Issuer will cause
all of its material properties used or useful in the conduct of its
business or the business of any Restricted Subsidiary to be maintained
and kept in good condition, repair and working order, reasonable wear
and tear excepted, 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 reasonable judgment
of the Issuer may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; provided, however, that the Issuer and its Restricted
Subsidiaries shall not be prevented from discontinuing the operation and
maintenance of any of such properties if such discontinuance is, in the
judgment of the Issuer, desirable in the conduct of its business and not
disadvantageous in any material respect to the Holders.
SECTION 1006. INSURANCE. The Issuer will, and will cause each of
its Restricted Subsidiaries to, maintain insurance coverage by
financially sound and reputable insurance companies on all of its
insurable property against loss or damage with amounts and types of
insurance that are commercially reasonable.
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS. The Issuer 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 Issuer 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 Issuer or any Subsidiary;
provided, however, that the Issuer shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1008. PROVISION OF FINANCIAL INFORMATION. Whether or not
the Issuer is subject to Section 13 or 15(d) of the Exchange Act, and
for so long as any Securities are outstanding, the Issuer will, to the
extent permitted under the Exchange Act, file with the Commission the
annual reports, quarterly reports and other documents which the Issuer
would have been required to file with the Commission pursuant to such
Section 13 or 15(d) (the "Financial Statements") if the Issuer were so
subject, such documents to be filed with the Commission on or prior to
the respective dates (the "Required Filing Dates") by which the Issuer
would have been required so to file such documents if the Issuer were so
subject.
<PAGE>
<PAGE>
The Issuer will also in any event (x) within 30 days of each
Required Filing Date (i) transmit by mail to all Holders, as their names
and addresses appear in the Security Register, without cost to such
Holders, copies of the annual reports and quarterly reports which the
Issuer would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Issuer were subject to
such Sections, and (ii) file with the Trustee copies of the annual
reports, quarterly reports and other documents which the Issuer would
have been required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act if the Issuer were subject to such Sections,
and (y) if filing such documents by the Issuer with the Commission is
not made under the Exchange Act, 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. STATEMENT AS TO COMPLIANCE. The Issuer shall
deliver to the Trustee, within 120 days after the end of each fiscal
year (which is currently December 31), a written statement (which need
not be contained in or accompanied by an Officers' Certificate) signed
by the principal executive officer, the principal financial officer or
the principal accounting officer of the Issuer, stating that:
(a) a review of the activities of the Issuer during such year
and of its performance under this Indenture has been made under his or
her supervision, and
(b) to the best of his or her knowledge, based on such review,
(i) the Issuer has complied with all the conditions and covenants
imposed on it under this Indenture throughout such year, or, if there
has been a default in the fulfillment of any such condition or covenant,
specifying each such default known to him or her and the nature and
status thereof, and (ii) no event has occurred and is continuing which
is, or after notice or lapse of time or both would become, an Event of
Default, or, if such an event has occurred and is continuing, specifying
each such event known to him and the nature and status thereof.
SECTION 1010. ADDITIONAL AMOUNTS. If any Securities of a series
provide for the payment of Additional Amounts, the Issuer 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(a), 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.
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<PAGE>
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 Issuer shall furnish to
the Trustee and the Paying Agent, if other than the Trustee, 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 Issuer will pay to the Trustee
or such Paying Agent the Additional Amounts required by the terms of
such Securities. If 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 Issuer
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 Issuer's not furnishing such an Officers'
Certificate.
SECTION 1011. WAIVER OF CERTAIN COVENANTS. The Issuer may omit in
any particular instance to comply with any term, provision or condition
set forth in Sections 1004 to 1009, inclusive, if before or after the
time for such compliance the Holders of at least a majority in principal
amount of all Outstanding Securities of each series affected by such
omission, 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 Issuer and the duties of the
Trustee in respect of any such term, provision or condition shall remain
in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as
contemplated by<PAGE>
<PAGE>
Section 301 for Securities of any series) in accordance with this
Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election
of the Issuer to redeem any Securities shall be evidenced by or pursuant
to a Board Resolution. In case of any redemption at the election of the
Issuer of less than all of the Securities of any series, the Issuer
shall, at least 45 days prior to the giving of notice of redemption in
Section 1104 (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities of such series to be redeemed. In the
case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Issuer 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 Issuer 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. 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:
(a) the Redemption Date;
<PAGE>
<PAGE>
(b) the Redemption Price, accrued interest to the Redemption
Date
payable as provided in Section 1106, if any, and Additional
Amounts, if any,
(c) 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,
(d) in case any Security is to be redeemed in part only, the
notice
which relates to such Security shall state that on and
after the
Redemption Date, upon surrender of such Security, the
holder will
receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof
remaining unredeemed,
(e) 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,
(f) 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,
(g) that the redemption is for a sinking fund, if such is the
case,
(h) 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 Issuer, the
Trustee for
such series and any Paying Agent is furnished,
(i) 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 Issuer, on which such exchanges may be
made,
(j) the CUSIP number or the Euroclear or CEDEL reference
numbers of
such Security, if any (provided that the notice may contain
a
disclaimer as to the accuracy of such numbers), and
(k) 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
<PAGE>
<PAGE>
conversion price or rate, and the date and time when the
option
to convert shall expire.
A notice of redemption published as contemplated by Section 106
need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed shall be given by
the Issuer or, at the Issuer's request, by the Trustee in the name and
at the expense of the Issuer.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. At least one Business
Day prior to any Redemption Date, the Issuer shall deposit with the
Trustee or with a Paying Agent (or, if the Issuer 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
and Additional Amounts with respect thereto, all the Securities or
portions thereof which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities 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 Issuer 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 Issuer at the
Redemption Price, together with accrued interest and Additional Amounts,
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, 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.
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<PAGE>
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
Issuer 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 upon
presentation and surrender of those coupons at an office or agency
located outside the United States (except as otherwise provided in
Section 1002).
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium or Make-Whole
Amount, if any) shall, until paid, bear interest from the
Redemption Date at the rate borne by the Security.
SECTION 1107. SECURITIES REDEEMED IN PART. Any Registered
Security which is to be redeemed only in part (pursuant to the
provisions of this Article) shall be surrendered at a Place of Payment
therefor (with, if the Issuer or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory
to the Issuer and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing) and the Issuer shall execute
and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge a new Registered Security or Securities
of the same series, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If
a Security in global form is so surrendered, the Issuer shall execute,
and the Trustee shall authenticate and deliver to the depositary for
such Security in global form as shall be specified in the Issuer Order
to the Trustee with respect thereto, without service charge, a new
Security in global form in a denomination equal to and in exchange for
the unredeemed portion of the principal of the Security in global form
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<PAGE>
<PAGE>
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 PAYMENT WITH
SECURITIES. The Issuer 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 Securities 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 Issuer pursuant
to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities,
or which have otherwise been acquired by the Issuer; 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 Issuer 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 Issuer
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 Issuer in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of Securities
of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities,
if any, and (except as otherwise specified by the terms of such series
established pursuant to Section 301) in accordance with this Article.
<PAGE>
<PAGE>
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 Issuer 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 Issuer is
acting as its own Paying Agent, segregate and hold in trust as provided
in Section 1003) an amount of money in 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
Issuer 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., or a commercial bank or trust company in the
United States setting forth the name of the Holder of the Security, the
principal amount of the Security, the principal amount of the Security
to be repaid, the CUSIP number, if any, or a description of the tenor
and terms of the Security, a statement that the option to elect
repayment is being exercised thereby and a guarantee that the Security
to be repaid, together with the duly completed form entitled "Option to
Elect Repayment" on the reverse of the Security will be received by the
Trustee not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; provided, however,
that such telegram, telex, facsimile transmission or letter shall only
be effective if such Security and form duly completed are received by
the Trustee by such fifth Business Day. If less than the entire
principal amount of such Security is to be repaid in accordance with the
terms of such Security, the principal amount of such Security to be
repaid, in increments of the minimum denominations 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<PAGE>
<PAGE>
thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Issuer.
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
Issuer on the Repayment Date therein specified, and on and after such
Repayment Date (unless the Issuer 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 Issuer, 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 Issuer shall default in the payment thereof) to the Holders
of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment
Date, such Security may be paid after deducting from the amount payable
therefor as provided in Section 1302 an amount equal to the face amount
of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Issuer 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.
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<PAGE>
SECTION 1305. SECURITIES REPAID IN PART. Upon surrender of any
Registered Security which is to be repaid in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge and at the expense of the Issuer,
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; ISSUER'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. If, pursuant to Section 301,
provision is made for either or both of (a) defeasance of the Securities
of or within a series under Section 1402 or (b) covenant defeasance of
the Securities of or within a series under Section 1403, then the
provisions of such Section or Sections, as the case may be, together
with the other provisions of this Article (with such modifications
thereto as may be specified pursuant to Section 301 with respect to any
Securities), shall be applicable to such Securities and any coupons
appertaining thereto, and the Issuer 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 Issuer's
exercise of the above option applicable to this Section with respect to
any Securities of or within a series, the Issuer 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 Issuer
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 Issuer, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Outstanding
Securities and any coupons appertaining thereto to receive, solely from
the trust fund described in Section 1404 and as more fully set forth in
such Section, payments in respect of the principal of (and premium or
Make-Whole Amount, if any) and interest and Additional Amounts, if any,
on such Securities and any coupons appertaining thereto when such
payments are due and any right of such Holder to exchange such
Securities for other Securities, (B) the Issuer'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<PAGE>
<PAGE>
as contemplated by Section 1010 (but only to the extent that the
Additional Amounts payable with respect to such Securities exceed the
amount deposited in respect of such Additional Amounts pursuant to
Section 1404 below), (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article Fourteen, the Issuer 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 Issuer's exercise of
the above option applicable to this Section with respect to any
Securities of or within a series, the Issuer 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 any such 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 Issuer 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(e) or 501(k) 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 Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any coupons appertaining thereto, (1) an
amount in such currency, currencies or currency unit in which such
Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity, or (2) Government Obligations applicable to
such Securities and coupons appertaining thereto (determined on the
basis of the currency, currencies or currency unit in which such
Securities and coupons appertaining thereto are then specified as
payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment
of principal of (and premium or<PAGE>
<PAGE>
Make-Whole Amount, if any) and interest, if any, on such Securities and
any coupons appertaining thereto, money in an amount, or (3) a
combination thereof, any case, in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium or Make-Whole Amount, if any) and interest, if
any, on such Outstanding Securities and any coupons appertaining thereto
on the Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to such Outstanding Securities and any coupons
appertaining thereto on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other material agreement or instrument to which the Issuer 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 and, with respect to
defeasance only, 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 Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Issuer 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 not 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 Issuer
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 Opinion
of Counsel to the effect that the trust funds will not be subject to any
rights of Holders of Debt, including, without limitation, any rights
arising under the Indenture (other than the rights of the Holders of the
Securities to be<PAGE>
<PAGE>
paid out of the proceeds of such trust funds) and that after the 91st
day following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar law affecting creditors' rights generally.
(g) The Issuer 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.
(h) 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 Issuer 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 Issuer 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 or Make-Whole Amount, 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, in or pursuant to this Indenture or any Security 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 Foreign
Currency in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons
appertaining thereto shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of (and
premium or Make-Whole Amount, if any), and interest, if any, on and
Additional Amounts, if any, with respect to 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 Foreign Currency in effect (as nearly as feasible) at
the time of the<PAGE>
<PAGE>
Conversion Event.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government
Obligations deposit pursuant to Section 1404 or the principal and
interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of such
Outstanding Securities and any coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject
to Section 606, the Trustee shall deliver or pay to the Issuer from time
to time upon Issuer 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 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 Issuer, pursuant to a Board
Resolution, or any Holders of at least 10 percent 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 Issuer 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 for
such meeting and may call such meeting for such purposes by giving
notice thereof as<PAGE>
<PAGE>
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 Issuer 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 as determined by
the chairman of the meeting prior to the adjournment of such adjourned
meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need to be
given only once not less than five days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of any
adjournment meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted by the affirmative vote of
the 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<PAGE>
<PAGE>
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:
(a) there shall be no minimum quorum requirement for such
meeting;
and
(b) the principal amount of the Outstanding Securities of such
series
that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be
taken
into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other
action
has been made, given or taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities of a series in regard to proof
of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and
the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized
by Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Issuer or by Holders of Securities as provided in
Section 1502(b), in which case the Issuer 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,<PAGE>
<PAGE>
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
Issuer 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.
SECTION 1507. EVIDENCE OF ACTION TAKEN BY HOLDERS. Any request,
demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Holders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Holders in person
or by agent duly appointed in writing, and, except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee. Proof and
execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to
Article Six) conclusive in favor of the Trustee and the Issuer, if made
in the manner provided in this Article.
SECTION 1508. PROOF OF EXECUTION OF INSTRUMENTS. Subject to
Article Six, the execution of any instrument by a Holder or his agent or
proxy may be proved in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as
shall be satisfactory to the Trustee.
<PAGE>
<PAGE>
ARTICLE SIXTEEN
SECURITIES IN FOREIGN CURRENCIES
SECTION 1601. APPLICABILITY OF ARTICLE. Whenever this Indenture
provides for (a) any action by, or the determination of any of the
rights of Holders of Securities of any series in which not all of such
Securities are denominated in the same currency, or (b) any distribution
to Holders of Securities, in the absence of any provision to the
contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a currency other than Dollars shall be treated for any
such action or distribution as that amount of Dollars that could be
obtained for such amount on such reasonable basis of exchange and as of
the record date with respect to Registered Securities of such series
(if any) for such action, determination of rights for distribution (or,
if there shall be no applicable record date, such other date reasonably
proximate to the date of such action, determination of rights or
distribution) as the Issuer may specify in a written notice to the
Trustee or, in the absence of such written notice, as the Trustee may
determine.
* * * * *
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
CRIIMI MAE INC.
Attest: By:
--------------------- ------------------------
Name:
Title:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
Attest: By:
------------------------- ----------------------------
Name:
Title:
Title:
<PAGE>
<PAGE>
STATE OF )
) ss:
COUNTY OF )
On the day of , 1997, before me personally came
----------------------------------- to me known, who, being by me duly
sworn, did depose and say that he is of
CRIIMI MAE INC.,
----------------------------
one of the parties described in and which executed the foregoing
instrument, and that he signed his name thereto by authority of the
Board of Directors.
{Notarial Seal}
----------------------------
Notary Public
COMMISSION EXPIRES
<PAGE>
<PAGE>
STATE OF )
) ss:
COUNTY OF )
On the day of , 1997, before me personally came
----------------------------------- to me known, who, being by me duly
sworn, did depose and say that he is of
----------------------------
-----------------------------,one of the parties described in and which
executed the foregoing instrument, and that he signed his name thereto
by authority of the Board of Directors.
{Notarial Seal}
----------------------------
Notary Public
COMMISSION EXPIRES
<PAGE>
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
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 1.165-12(c)(1)(v)
are herein referred to a "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 CRIIMI MAE Inc. 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, amended, and the regulations thereunder),
or (iii) are owned by United States or foreign financial institution(s)
for purposes of resale during the restricted period (as defined in
United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and,
in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also
described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person
within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia), and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise your 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<PAGE>
<PAGE>
Security or an exchange for and delivery of definitive Securities (or,
if relevant, collection of any interest) cannot be made until we do so
certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with which
this certificate is or would be relevant, we irrevocably authorize you
to produce this certificate or a copy thereof to any interested party in
such proceedings.
Dated: , 19
--------- ----
(To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable)
(Name of Person Making Certification)
----------------------------------------
(Authorized Signatory)
Name:
Title:
<PAGE>
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE
EXCHANGE OF A PORTION OF A TEMPORARY
GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
{Insert title or sufficient description of Securities to be delivered}
This is to certify that, based solely on written certifications
that we have received in writing, by tested telex or by electronic
transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below
(our "Member Organizations") substantially in the form attached hereto,
as of the date hereof, (U.S.)
-------------------- principal amount of the above-captioned Securities
(i) is owned by person(s) that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any
estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States person(s)"),
(ii) is owned by United States person(s) that are (a) foreign branches
of United States financial institutions (financial institutions, as
defined in the 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 CRIIMI MAE Inc. or its agent that
such financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986,
as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that
financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein "United States" means the United States of America
(including the States and the District of Columbia), and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith
for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned
Securities excepted in the above-referenced certificates of Member
Organizations and (ii) as of the date hereof we have not received any
notification from any of our Member<PAGE>
<PAGE>
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)
By:
------------------------------------
<PAGE>
<PAGE>
TABLE OF CONTENTS
Page
----
RECITALS OF THE ISSUER 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
SECTION 101. DEFINITIONS 1
Acquired Indebtedness 1
Act 2
Additional Amounts 2
Affiliate 2
Authenticating Agent 2
Authorized Newspaper 2
Bankruptcy Law 2
Bearer Security 2
Board of Directors 2
Board Resolution 2
Business Day 2
Capital Stock 2
CEDEL 3
Commission 3
Common Depositary 3
Conversion Event 3
Corporate Trust Office 3
Corporation 3
Coupon 3
Custodian 3
Debt 3
Defaulted Interest 4
Dollar 4
DTC 4
ECU 4
Euroclear 4
European Community 4
European Monetary System 4
European Union 4
Event of Default 4
Exchange Act 5
Exchange Date 5
Foreign Currency 5
GAAP 5
Government Obligations 5
Holder 5
Indenture 5
Indexed Security 5
Interest 5
Interest Payment Date 5<PAGE>
<PAGE>
Interest Rate Agreement 6
Investment 5
Issue Date 5
Issuer 6
Issuer Request 6
Judgment Currency 6
Legal Holiday 6
Make-Whole Amount 6
Maturity 6
Officers' Certificate 7
Opinion of Counsel 7
Original Issue Discount Security 7
Outstanding 7
Paying Agent 8
Person 8
Place of Payment 8
Predecessor Security 8
Preferred Stock 7
Recourse Indebtedness 8
Redeemable Capital Stock 7
Redemption Date 8
Redemption Price 9
Registered Security 9
Regular Record Date 9
Reinvestment Rate 9
Repayment Date 9
Repayment Price 9
Responsible Officer 9
Restricted Subsidiary 9
Secured Debt 9
Security 10
Security Register 10
Significant Subsidiary 10
Special Record Date 10
Stated Maturity 10
Statistical Release 10
Subsidiary 10
Trust Indenture Act or 10
Trustee 10
United States 10
United States Person 11
Unrestricted Subsidiary 11
Unsecured Debt 11
Yield to Maturity 11
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS 11
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE 11
SECTION 104. ACTS OF HOLDERS 12
SECTION 105. NOTICES, ETC., TO TRUSTEE AND ISSUER 13
<PAGE>
<PAGE>
SECTION 106. NOTICE TO HOLDERS; WAIVER 13
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS 14
SECTION 108. SUCCESSORS AND ASSIGNS 14
SECTION 109. SEVERABILITY CLAUSE 14
SECTION 110. BENEFITS OF INDENTURE 14
SECTION 111. GOVERNING LAW 14
SECTION 112. LEGAL HOLIDAYS 15
SECTION 113. CONFLICT WITH TRUST INDENTURE ACT 15
SECTION 114. COUNTERPARTS 15
SECTION 115. JUDGMENT CURRENCY 15
SECTION 116. NONRECOURSE 15
ARTICLE TWO SECURITIES FORMS
SECTION 201. FORMS OF SECURITIES 15
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION 15
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM 16
ARTICLE THREE THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES 16
SECTION 302. CURRENCY, DENOMINATIONS 20
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING 20
SECTION 304. TEMPORARY SECURITIES 22
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER
AND EXCHANGE 24
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES 27
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS RESERVED 28
SECTION 308. PERSONS DEEMED OWNERS 29
SECTION 309. CANCELLATION 30
SECTION 310. COMPUTATION OF INTEREST 30
<PAGE>
<PAGE>
ARTICLE FOUR SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE 31
SECTION 402. APPLICATION OF TRUST FUNDS 32
ARTICLE FIVE REMEDIES
SECTION 501. EVENTS OF DEFAULT 32
SECTION 502. ACCELERATION OF MATURITY; RESCISSION
AND ANNULMENT 34
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS
FOR ENFORCEMENT BY TRUSTEE 34
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM 35
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF SECURITIES OR COUPONS 36
SECTION 506. APPLICATION OF MONEY COLLECTED 36
SECTION 507. LIMITATION ON SUITS 36
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM OR MAKE-WHOLE AMOUNT,
IF ANY, INTEREST AND ADDITIONAL AMOUNTS 37
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES 37
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE 37
SECTION 511. DELAY OR OMISSION NOT WAIVER 37
SECTION 512. CONTROL BY HOLDERS OF SECURITIES 37
SECTION 513. WAIVER OF PAST DEFAULTS 38
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS 38
SECTION 515. UNDERTAKING FOR COSTS 38
ARTICLE SIX THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS 39
SECTION 602. CERTAIN RIGHTS OF TRUSTEE 39
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR
ISSUANCE OF SECURITIES 40
<PAGE>
<PAGE>
SECTION 604. MAY HOLD SECURITIES 40
SECTION 605. MONEY HELD IN TRUST 40
SECTION 606. COMPENSATION AND REIMBURSEMENT 40
SECTION 607. CORPORATE TRUSTEE REQUIRED ELIGIBILITY;
CONFLICTING INTERESTS 41
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT
OF SUCCESSOR 41
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR 43
SECTION 610. MERGER, CONVERSION, CONSOLIDATION
OR SUCCESSION TO BUSINESS 43
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT 44
ARTICLE SEVEN HOLDERS' LIST AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS 45
SECTION 702. REPORTS BY TRUSTEE 45
SECTION 703. REPORTS BY ISSUER 46
SECTION 704. ISSUER TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS 46
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE
OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF ISSUER AND
SALES, LEASES AND CONVEYANCE PERMITTED
SUBJECT TO CERTAIN CONDITIONS 46
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION 47
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL 47
ARTICLE NINE SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT
CONSENT OF HOLDERS 47
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS 48
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES 49
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES 49
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT 50<PAGE>
<PAGE>
SECTION 906. REFERENCE IN SECURITIES TO
SUPPLEMENTAL INDENTURES 50
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES 50
ARTICLE TEN COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM OR MAKE-WHOLE
AMOUNT, IF ANY, INTEREST AND ADDITIONAL AMOUNTS 50
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY 50
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE
HELD IN TRUST 52
SECTION 1004. EXISTENCE 53
SECTION 1005. MAINTENANCE OF PROPERTIES 53
SECTION 1006. INSURANCE 53
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS 53
SECTION 1008. PROVISION OF FINANCIAL INFORMATION. 53
SECTION 1009. STATEMENT AS TO COMPLIANCE 54
SECTION 1010. ADDITIONAL AMOUNTS 54
SECTION 1011. WAIVER OF CERTAIN COVENANTS 55
ARTICLE ELEVEN REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE 55
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE 55
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES
TO BE REDEEMED 55
SECTION 1104. NOTICE OF REDEMPTION 55
SECTION 1105. DEPOSIT OF REDEMPTION PRICE 57
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE 57
SECTION 1107. SECURITIES REDEEMED IN PART 58
ARTICLE TWELVE SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE 58
<PAGE>
<PAGE>
SECTION 1202. SATISFACTION OF SINKING FUND
PAYMENT WITH SECURITIES 58
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND 58
ARTICLE
THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE 59
SECTION 1302. REPAYMENT OF SECURITIES 59
SECTION 1303. EXERCISE OF OPTION 59
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT
BECOME DUE AND PAYABLE 60
SECTION 1305. SECURITIES REPAID IN PART 60
ARTICLE
FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; ISSUER'S OPTION
TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE 61
SECTION 1402. DEFEASANCE AND DISCHARGE 61
SECTION 1403. COVENANT DEFEASANCE 61
SECTION 1404. CONDITIONS TO DEFEASANCE OR
COVENANT DEFEASANCE 62
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS 63
ARTICLE
FIFTEEN MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED 64
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS 64
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS 64
SECTION 1504. QUORUM; ACTION 64
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS 65
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS 66
SECTION 1507. EVIDENCE OF ACTION TAKEN BY HOLDERS 66<PAGE>
<PAGE>
SECTION 1508. PROOF OF EXECUTION OF INSTRUMENTS 66
ARTICLE
SIXTEEN SECURITIES IN FOREIGN CURRENCIES
SECTION 1601. APPLICABILITY OF ARTICLE 67
<PAGE>
<PAGE>
EXHIBIT T3C.1
CRIIMI MAE INC.
AND
STATE STREET BANK AND TRUST COMPANY
as Trustee
-----------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of November 21, 1997
-----------------------------------------------
Supplement to Indenture dated as of November 21, 1997
<PAGE>
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of November 21, 1997, between
CRIIMI MAE INC., a Maryland corporation (hereinafter called the "Company"),
having its principal office at 11200 Rockville Pike, Rockville, Maryland
20852, and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company
(hereafter called the "Trustee"), having a Corporate Trust Office at Two
International Place, Financial Services, Corporate Trust Department, Boston,
Massachusetts 02110, as Trustee under the Indenture (as hereinafter defined).
RECITALS
WHEREAS, the Company and the Trustee have as of November 21, 1997 entered
into an Indenture, (hereinafter called the "Indenture") providing for the
issuance by the Company from time to time of its senior debt securities
evidencing its unsecured and unsubordinated indebtedness (the "Securities")
(all capitalized terms used and not otherwise defined herein shall have the
meanings set forth in the Indenture);
WHEREAS, no Securities have been issued under the Indenture;
WHEREAS, the Company desires to issue one series of senior debt
securities under the Indenture, the "Notes" (as defined below), and has duly
authorized the creation of the Notes and the execution and delivery of this
First Supplemental Indenture to modify the Indenture and provide certain
additional provisions as hereinafter described;
WHEREAS, in accordance with Section 901(g) of the Indenture, the Company
and the Trustee are authorized and permitted to amend and supplement the
Indenture as set forth herein, without the consent of any Holder, and all
requirements set forth in Article Nine to make this First Supplemental
Indenture effective have been satisfied; and
WHEREAS, the Company and the Trustee deem it advisable to enter into this
First Supplemental Indenture for the purposes of establishing the terms of the
Notes and providing for the rights, obligations and duties of the Trustee with
respect to the Notes;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the mutual premises and agreements herein
contained, the Company and the Trustee covenant and agree, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
CREATION OF THE NOTES
SECTION 1.01. DESIGNATION OF SERIES. Pursuant to the terms hereof and
Sections 201 and 301 of the Indenture, the Company hereby creates a series of
its Notes known as the "9 1/8 percent Notes due 2002," which Notes shall be
deemed "Securities" for all purposes under the Indenture.
<PAGE>
<PAGE>
SECTION 1.02. FORM OF NOTES. The definitive form of the Notes shall be
substantially in the form set forth in Exhibit A attached hereto, which is
incorporated herein and made part hereof. The Notes shall bear interest, be
payable and have such other terms as are stated in the form of definitive Note
or in the Indenture, as supplemented by this First Supplemental Indenture.
SECTION 1.03. LIMIT ON AMOUNT OF SERIES. The Notes shall not exceed
$100,000,000 in aggregate principal amount, and may, upon the execution and
delivery of this First Supplemental Indenture or from time to time thereafter,
be executed by the Company and delivered to the Trustee for authentication,
and the Trustee shall thereupon authenticate and deliver said Notes to or upon
the written order of the Company, signed by its Chairman of the Board,
President or a Vice President and by its Chief Financial Officer, Treasurer or
an Assistant Treasurer or its Secretary or an Assistant Secretary, without
further action by the Company.
SECTION 1.04. CERTIFICATE OF AUTHENTICATION. The Trustee's certificate
of authentication to be borne on the Notes shall be substantially as provided
in the Indenture.
<PAGE>
<PAGE>
ARTICLE TWO
APPOINTMENT OF THE TRUSTEE FOR THE NOTES
SECTION 2.01. APPOINTMENT OF TRUSTEE. Pusuant and subject to the
Indenture, the Company and the Trustee hereby constitute the Trustee as
trustee to act on behalf of the Holders of the Notes, and as the principal
Paying Agent and Security Registrar for the Notes, effective upon execution
and delivery of this First Supplemental Indenture. By execution,
acknowledgment and delivery of this First Supplemental Indenture, the Trustee
hereby accepts appointment as trustee, Paying Agent and Security Registrar
with respect to the Notes, and agrees to perform such trusts upon the terms
and conditions in the Indenture and in this First Supplemental Indenture set
forth.
SECTION 2.02. RIGHTS, POWERS, DUTIES AND OBLIGATIONS OF THE TRUSTEE.
Any rights, powers, duties and obligations by any provisions of the Indenture
conferred or imposed upon the Trustee shall, insofar as permitted by law, be
conferred or imposed upon and exercised or performed by the Trustee with
respect to the Notes.
ARTICLE THREE
DEFINITIONS
So long as any of the Notes are Outstanding, the following definitions
shall be applicable to the Notes, be included as defined as terms for all
purposes under the Indenture with respect to the Notes and, to the extent
inconsistent with the definition of such term contained in Section 101 of the
Indenture, shall replace such definition for purposes of the Notes:"Acquired
Debt" means Debt of a Person (a) existing at the time such Person becomes a
Restricted Subsidiary or (b) 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 Restricted 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 Restricted Subsidiary.
"Adjusted Consolidated Net Income" means Consolidated Net Income,
adjusted by excluding, without duplication, (a) any net after-tax
extraordinary gains or losses (less all fees and expenses relating thereto);
(b) any net after-tax gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions other than in the ordinary course
of business; (c) the portion of net income (or loss) of any Person (other than
the Company or a Restricted Subsidiary) in which the Company or any Restricted
Subsidiary has an ownership interest, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any
Restricted Subsidiary in cash dividends or distributions during such period;
(d) the net income (or loss) of any Person combined with the Company or any
Restricted Subsidiary on a "pooling of interests" basis attributable to any
period prior to the date of combination and (e) the net income of any
Restricted Subsidiary to the extent that the declaration or payment of
dividends or similar distributions by such Restricted Subsidiary is not at the
date of determination permitted, directly or indirectly, by operation of
the<PAGE>
<PAGE>
terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such Restricted
Subsidiary or its stockholders.
"Adjusted Debt to Capital Ratio" means the ratio of (a) total Debt of the
Company and its Restricted Subsidiaries on a consolidated basis less (i) Match
Funded Debt and (ii) nonrecourse Debt of any Restricted Subsidiary that is not
consolidated with the Company on its financial statements in accordance with
GAAP to (b) Consolidated Net Worth.
"Adjusted Earnings Available for Fixed Charges" is defined as the sum of
(1) Adjusted Consolidated Net Income; plus (2) Consolidated Interest Expense,
adjusted by excluding Match Funded Fixed Charges, plus (3) Consolidated Income
Tax Expense, plus (4) Consolidated Noncash Items.
"Adjusted Fixed Charges" means the amount which is expensed in any period
for Consolidated Interest Expense of the Company and its Restricted
Subsidiaries, Preferred Stock dividends of the Company (other than dividends
paid in shares of Qualified Capital Stock) declared and paid or payable during
such period and accrued Redeemable Capital Stock dividends of the Company and
its Restricted Subsidiaries for such period, whether or not declared or paid,
adjusted by subtracting Match Funded Fixed Charges.
"Affiliate" means, with respect to any specified Person (a) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person or (b) any other Person
that owns, directly or indirectly, 10 percent or more of such specified
Person's Capital Stock or any executive officer or director of any such
specified Person or other 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.
"Average Life" means, as of the date of determination with respect to any
Debt, the quotient obtained by dividing (a) the sum of the products of (i) the
number of years from the date of determination to the date or dates of each
successive scheduled principal payment (including, without limitation, any
sinking fund requirements) of such Debt multiplied by (ii) the amount of each
such principal payment, by (b) the sum of all such principal payments.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, partnership interests, participations, rights in or other
equivalents (however designated) of such Person's equity, including any
Preferred Stock, and any rights (other than debt securities convertible into
or exchangeable or exercisable for such equity), warrants or options
exchangeable or exercisable for or convertible into such equity, whether now
outstanding or issued after the Issue Date.
"Cash Equivalents'' means (a) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed or insured by the
United States Government or any agency thereof; (b) certificates of
deposit,<PAGE>
<PAGE>
bankers acceptances and Eurodollar time deposits with maturities of one year
or less from the date of acquisition and overnight bank deposits of any
commercial bank having capital and surplus in excess of $500,000,000;
(c) commercial paper of a domestic issuer rated at least A-l by S&P or P-l by
Moody's; (d) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least
A by S&P or A2 by Moody's; or (e) shares of money market mutual or similar
funds which invest exclusively in assets satisfying the requirements of
clauses (a) through (d) of this definition.
"Change of Control" means the occurrence of any of the following events:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act of 1934, as amended (the "Exchange Act")), other
than Permitted Holders, is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all securities that such Person has
the right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than 40 percent of
the total outstanding Voting Stock of the Company; (b) the Company
consolidates with, or merges with or into, another Person or conveys,
transfers, leases or otherwise disposes of all or substantially all of its
assets to any Person, or any Person consolidates with, or merges with or into,
the Company, in any such event pursuant to a transaction in which the
outstanding Voting Stock of the Company is converted into or exchanged for
cash, securities or other property, other than any such transaction (i) where
the outstanding Voting Stock of the Company is not converted or exchanged at
all (except to the extent necessary to reflect a change in the jurisdiction of
incorporation of the Company) or is converted into or exchanged for (A) Voting
Stock (other than Redeemable Capital Stock) of the surviving or transferee
corporation and/or (B) cash, securities and other property (other than Capital
Stock of the entity surviving such transaction) in an amount that could be
paid by the Company as a Restricted Payment as described in Section 5.01
hereof (as such amount shall be treated as a Restricted Payment subject to the
provisions of the Notes as described in Section 5.01 hereof and (ii) where
immediately after such transaction, no person'' or "group" (as such terms
are used in Sections 13(d) and 14(d) of the Exchange Act), other than
Permitted Holders, is the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of 40 percent or more of the total
outstanding Voting Stock of the surviving or transferee corporation;
(c) Continuing Directors shall at any time cease to constitute a majority of
the Board of Directors of the Company; or (d) the Company is liquidated or
dissolved or adopts a plan of liquidation or dissolution other than in a
transaction which complies with the provisions described in Article Seven.
"CMBS'' means collateralized mortgage backed securities.<PAGE>
<PAGE>
"Consolidated Income Tax Expense'' for any period means the provision for
federal, state, local and foreign income taxes of the Company and all
Restricted Subsidiaries for such period as determined on a consolidated basis
in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, and without
duplication, all interest (including the interest component of rentals on
leases reflected in accordance with GAAP as capitalized leases on the
consolidated balance sheet of the Company and its Restricted Subsidiaries,
letter of credit fees, Interest Rate Agreement fees, commitment fees and other
like financial charges) and all amortization of debt discount on all Debt
(including, without limitation, payment in kind, zero coupon and other
securities) of the Company and its Restricted Subsidiaries, determined in
accordance with GAAP less interest expense attributable to nonrecourse Debt of
any Restricted Subsidiary that is not consolidated with the Company on its
financial statements in accordance with GAAP; provided that (x) the
Consolidated Interest Expense attributable to interest on any Debt computed on
a pro forma basis and (A) bearing a floating interest rate shall be computed
as if the rate in effect on the date of computation had been the applicable
rate for the entire period and (B) which was not outstanding during the period
for which the computation is being made but which bears, at the option of the
Company, a fixed or floating rate of interest, shall be computed by applying
at the option of the Company, either the fixed or floating rate, and (y) in
making such computation, the Consolidated Interest Expense attributable to
interest on any Debt under a revolving credit facility computed on a pro forma
basis shall be computed based upon the average daily balance of such Debt
during the applicable period.
"Consolidated Net Income'' for any period means the amount of net income
(or loss) of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means, at any date of determination, the
consolidated stockholders' equity (excluding Redeemable Capital Stock or
treasury stock) of the Company and any Restricted Subsidiaries, as determined
on a consolidated basis in accordance with GAAP.
"Consolidated Noncash Items" means, for any period, the aggregate
depreciation, amortization and other noncash items (including noncash interest
expense) of the Company and any Restricted Subsidiary reducing or increasing
Consolidated Net Income for such period, determined on a consolidated basis in
accordance with GAAP (excluding any such noncash charge if and to the extent
that the Company has made or shall, under GAAP, be required to be made an
accrual of or reserve for cash charges for any future period).
"Continuing Directors'' shall mean, collectively, (i) all members of the
Board of Directors of the Company on the Issue Date and (ii) all members of
the Board of Directors of the Company who assume office after the Issue Date
and whose nomination for election by the Company's shareholders was approved
by a majority of the directors then in office whose nomination for election
was previously so approved.
<PAGE>
<PAGE>
"Debt" of any Person means, without duplication, any indebtedness of such
Person, whether or not contingent, in respect of (i) borrowed money evidenced
by bonds, notes, debentures or similar instruments, (ii) indebtedness secured
by any mortgage, pledge, lien, charge, encumbrance or any security interest
existing on property owned by such Person, (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, (iv) all obligations under or
in respect of Interest Rate Agreements, (v) all Debt referred to in the
preceding clauses, of other Persons and all dividends of other Persons, the
payment of which is secured by (or for which the holders of such Debt have an
existing right, contingent or otherwise, to be secured by) any Lien upon or
with respect to property owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt (the amount of such
obligation being deemed to be the lesser of the fair market value of such
property or asset (as determined in good faith by the Company's Board of
Directors whose determination shall be conclusive) or the amount of the
obligation so secured), (vi) any lease of property by such Person as lessee
which is reflected in such Person's consolidated balance sheet as a
capitalized lease in accordance with GAAP, (vii) all Redeemable Capital Stock
of such Person valued at the greater of its voluntary or involuntary maximum
fixed repurchase price plus accrued and unpaid dividends (for purposes hereof,
the "maximum fixed repurchase price" of any Redeemable Capital Stock which
does not have a fixed repurchase price shall be calculated in accordance with
the terms of such Redeemable Capital Stock as if such Redeemable Capital Stock
were purchased on any date on which Debt shall be required to be determined
pursuant to the Indenture, and if such price is based upon, or measured by,
the fair market value of such Redeemable Capital Stock, such fair market value
shall be determined in good faith by the board of directors of the issuer of
such Redeemable Capital Stock), (viii) all guarantees by such Person of Debt
referred to in this definition of any other Person or (ix) any amendment,
supplement, modification, deferral, renewal, extension, refunding or
refinancing of any Debt of the types referred to in clauses (i) through (viii)
above, (it being understood that "Debt" shall be deemed to be incurred by the
Company and its Restricted Subsidiaries on a consolidated basis whenever the
Company and its Restricted Subsidiaries on a consolidated basis shall create,
assume, guarantee or otherwise become liable in respect thereof; Debt of a
Restricted Subsidiary of the Company existing prior to the time it became a
Restricted Subsidiary of the Company shall be deemed to be incurred upon such
Restricted Subsidiary's becoming a Restricted Subsidiary of the Company; and
Debt of a person existing prior to a merger or consolidation of such person
with the Company or any Restricted Subsidiary of the Company in which such
person is the successor to the Company or such Restricted Subsidiary shall be
deemed to be incurred upon the consummation of such merger or consolidation);
provided, however that the term Debt shall not include any such indebtedness
that has been the subject of an "in substance" defeasance in accordance with
GAAP.
"DTC" means The Depository Trust Company.
<PAGE>
<PAGE>
"Global Note" means a Note in book-entry form registered in the name of
DTC or its nominee or in the name of any successor depositary for the Notes or
any nominee of such successor.
"Government Insured Mortgage Assets" means interests in mortgages that
are insured or guaranteed by the U.S. Government or its agencies and are
secured by multifamily housing complexes located throughout the United States.
"Interest Rate Agreements" means interest rate protection agreements in
the form of a swap, cap, collar, floor, rate lock, or similar agreement
designed to protect against or manage exposure to fluctuations in interest
rates relating to any floating rate Debt of the Company or its Subsidiaries.
"Investment" means, with respect to any Person, any direct or indirect
advance, loan or other extension of credit or capital contribution to (by
means of a transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase,
acquisition or ownership by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Debt issued or owned by, any
other Person and all other items that would be classified as investments on a
balance sheet prepared in accordance with GAAP. For purposes of the
definition of "Unrestricted Subsidiary" and Article Six hereof,
(i) "Investment" shall include the fair market value of the assets (net
of liabilities) of any Restricted Subsidiary of the Company at the
time that such Restricted Subsidiary of the Company is designated an
Unrestricted Subsidiary and shall exclude the fair market value of the assets
(net of liabilities) of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary of the Company
and (ii) any property transferred to or from any Person shall be valued at its
fair market value at the time of such transfer, in each case as determined by
the Board of Directors of the Company in good faith.
"Issue Date" means the date the Notes are first authenticated and
delivered under the Indenture.
"Lien" means any mortgage, charge, pledge, lien (statutory or otherwise),
privilege, security interest, hypothecation, assignment for security, claim,
or preference or priority or other encumbrance upon or with respect to any
property owned on the Issue Date or thereafter assigned.
"Make-Whole Amount" means, in connection with any optional redemption of
any Notes, the excess, if any, of (i) the aggregate present value as of the
date of such redemption of each dollar of principal being redeemed and the
amount of interest (exclusive of interest accrued to the date of redemption)
that would have been payable in respect of each such dollar if such redemption
had not been made, determined by discounting, on a semiannual basis, such
principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date notice of such redemption is given) from the
respective dates on which such principal and interest would have been payable
if such redemption had not been made, to the date of redemption, over (ii) the
aggregate principal amount of the Notes being redeemed.
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"Match Funded Debt" means Debt of a special purpose, bankruptcy remote
Restricted Subsidiary as to which no recourse exists either to the Company or
any other Restricted Subsidiary, on which (i) the principal amortization and
maturity of such Debt are based upon the aggregate principal amortization and
maturity of a like or greater amount of the funded assets, and (ii) the
interest rate of such Debt is at a fixed rate; provided, however, that the
interest rate of such Debt may be at a floating rate if (x) the funded assets
include adjustable rate assets or (y) the funded assets have been effectively
swapped under an Interest Rate Agreement.
"Match Funded Fixed Charges" means interest expenses relating to any
Match Funded Debt.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Mortgage" means a mortgage or deed of trust on real property which has
been improved by a completed single or multifamily dwelling unit or commercial
real estate property.
"Mortgage Loan" means a Mortgage Note and the related Mortgage.
"Mortgage Note" means a promissory note which has a term not exceeding 30
years evidencing a loan or advance which is secured by a Mortgage.
"Mortgage Warehouse Debt" means Debt of any Person under any warehouse
line of credit, mortgage loan repurchase agreement or similar facility or
under any commercial paper program (a) that is incurred for the purpose of
funding the origination or purchase of Mortgage Loans or Mortgage Notes that
are intended to be sold to investors or securitized, (b) that in the case of
any warehouse line of credit or similar facility is, or, in the case of any
commercial paper program, the letters of credit or revolving credit facility
providing credit enhancement or liquidity backup for such commercial paper
program are, secured by Mortgage Loans, Mortgage Notes, CMBS or any
combination thereof owned by such Person[, and] (c) the outstanding amount of
which shall not exceed 100 percent of the principal amount of the Mortgage
Loans, Mortgage Notes or CMBS securing such Debt.
"Net Cash Proceeds'' means, with respect to any issuance or sale of
Capital Stock, or debt securities that have been converted into or exchanged
for Capital Stock, the proceeds of such issuance or sale in the form of cash
or Cash Equivalents, including payments in respect of deferred payment
obligations when received in the form of cash or Cash Equivalents, net of
attorney's fees, accountant's fees and brokerage, consulting, underwriting and
other fees and expenses, actually incurred in connection with such issuance or
sale and net of taxes paid or payable as a result thereof.
"Paying Agent'' means any Person authorized by the Company to make
payments of principal, premium or interest with respect to the Notes on behalf
of the Company.
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"Permitted Holders" means William B. Dockser and H. William Willoughby
and trusts controlled by either of them, CRI, Inc. and its successors, and
Affiliates of each of the foregoing.
"Permitted Indebtedness'' means:
(a) Debt of the Company pursuant to the Notes;
(b) Debt of the Company or any Restricted Subsidiary outstanding on
the date of the Indenture and listed on a schedule thereto, other
than any Debt described in any other paragraph of this definition;
(c) Debt of the Company owing to any Wholly Owned Restricted
Subsidiary; provided that any Debt of the Company owing to any
such Restricted Subsidiary is made pursuant to an intercompany
note and is subordinated in right of payment from and after such
time as the Notes shall become due and payable (whether at Stated
Maturity, upon acceleration or otherwise) to the payment and
performance of the Company's obligations under the Notes; provided
further, that any disposition, pledge or transfer of any such Debt
to a Person (other than a disposition, pledge or transfer to
another Wholly Owned Restricted Subsidiary) shall be deemed to be
an incurrence of such Debt by the Company not permitted by this
clause (c);
(d) Debt of a Wholly Owned Restricted Subsidiary owing to the Company
or to another Wholly Owned Restricted Subsidiary of the Company;
provided that any such Debt is made pursuant to an unsubordinated
intercompany note; provided, further, that (i) any disposition,
pledge or transfer of any such Debt to a Person (other than a
disposition, pledge or transfer to the Company or another Wholly
Owned Restricted Subsidiary) shall be deemed to be an incurrence
of such Debt by such Wholly Owned Restricted Subsidiary not
permitted by this clause (d) and (ii) any transaction pursuant to
which any Wholly Owned Restricted Subsidiary, which is owed Debt
by any other Restricted Subsidiary, ceases to be a Wholly Owned
Restricted Subsidiary shall be deemed to be an incurrence of such
Debt not permitted by this clause (d);
(e) repurchase agreements (including "gestation" repurchase
transactions) entered into in the ordinary course of the mortgage
banking business; provided that the aggregate payment obligations
under all such repurchase agreements at any time outstanding shall
not exceed 70 percent of the amount equal to (i) the aggregate
amortized
cost of all Mortgage Loans, Government Insured Mortgage Assets and
CMBS owned by the Company and its Restricted Subsidiaries less
(ii) the principal amount of Match Funded Debt;
(f) the endorsement of negotiable instruments by the Company or any
Restricted Subsidiary for deposit or collection or similar
transactions in the ordinary course of business;
(g) unsecured Debt of the Company under one or more bank credit
agreements in an amount outstanding at any one time of up to $75
million;
(h) Debt under Interest Rate Agreements, provided that such agreements
relate to Debt permitted pursuant to Section 5.02 hereof and
provided that such agreements have a notional amount no greater
than the payments due with respect to the Debt being hedged
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thereby and such agreements are not for purposes of speculation;
(i) Match Funded Debt;
(j) Debt incurred by the Company in an amount not to exceed $25
million pursuant to a secured facility for the purpose of
financing the purchase of real property or Mortgage Loans;
(k) Servicing Secured Indebtedness in an amount not to exceed $50
million at any time outstanding;
(l) Mortgage Warehouse Debt;
(m) Debt of the Company or any Restricted Subsidiary not otherwise
permitted to be incurred pursuant to clauses (a) through (1) above
which, together with any other outstanding Debt incurred pursuant
to this clause (m) has an aggregate principal amount not in excess
of $10 million at any time outstanding; and
(n) any renewals, extensions, substitutions, refinancings or
replacements (each, for purpose of this clause, a "refinancing")
of any Debt described in clauses (a) and (b) of this definition,
including any successive refinancings, so long as (i) any such new
Debt shall be in a principal amount that does not exceed the
principal amount (or, if such Debt being refinanced provides for
an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration thereof, such lesser
amount as of the date of determination) so refinanced, plus the
amount of any premium required to be paid in connection with such
refinancing pursuant to the terms of the Debt refinanced or the
amount of any premium actually paid at such time to refinance the
Debt as determined by the Company in good faith, plus, in either
case, the amount of reasonable expenses incurred in connection
with such refinancing, (ii) (A) if such new Debt has an Average
Life to Stated Maturity shorter than that of the Notes or a final
Stated Maturity earlier than the final Stated Maturity of the
Notes, such new Debt shall have an Average Life no shorter than
the remaining Average Life of the Debt so refinanced and a final
Stated Maturity no earlier than the final Stated Maturity of the
Debt so renewed, extended, substituted, refinanced or replaced or
(B) in all other cases, the Stated Maturity of principal (or any
required repurchase, redemption or sinking fund payments) of such
new Debt shall be on or after the final Stated Maturity or
principal of the Notes; and (iii) in the case of any refinancing of
Subordinated Debt, such new Debt is made subordinate to the Notes
at least to the same extent as the Debt being refinanced, provided
that Debt of the Company may not be refinanced by Debt of any
Subsidiary of the Company pursuant to this clause (n).
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents;
(b) Investments in the Company or any Wholly Owned Restricted
Subsidiary engaged in the commercial mortgage business;
(c) intercompany Indebtedness to the extent permitted under
clauses (c) and (d) of the definition of Permitted Indebtedness;
(d) negotiable instruments held for deposit or collection in the
ordinary course of business, except to the extent that they would
constitute Investments in Affiliates;<PAGE>
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(e) Investments in stock, obligations or securities received in
settlement of debts owing to the Company or a Restricted
Subsidiary as a result of foreclosure, perfection or enforcement
of any Lien, in each case in the ordinary course of business;
(f) travel, moving and other advances made to officers, employees and
consultants in the ordinary course of business;
(g) Investments by the Company or any Restricted Subsidiary in
another Person, if as a result of such Investment (i) such other
Person becomes a Wholly Owned Restricted Subsidiary or (ii) such
other Person is merged or consolidated with or into, or transfers
or conveys all or substantially all of its assets to, the Company
or a Restricted Subsidiary;
(h) Investments in any special purpose, bankruptcy remote Restricted
Subsidiary formed to incur Match Funded Debt pursuant to
clause (i) of the definition of "Permitted Indebtedness";
(i) Investments in Mortgage Loans, CMBS, interest only strips,
Government Insured Mortgage Assets, mortgage servicing rights and
Interest Rate Agreements, including short-term Investments in
escrow accounts established in connection with the origination of
Mortgage Loans intended for securitization, in each case made in
the ordinary course of business;
(j) so long as the Company could incur at least $1.00 of Debt (other
than Permitted Indebtedness) pursuant to Section 5.02 hereof,
Investments in an amount not to exceed $40 million at any time
outstanding in any Person engaged in the commercial mortgage
business as long as the Company would own a majority of the
Voting Stock and a majority of the value of economic interests in
such Person; and
(k) so long as the Company could incur at least $1.00 of Debt (other
than Permitted Indebtedness) pursuant to Section 5.02 hereof,
Investments in an amount not to exceed $10 million at any time
outstanding in any Person engaged in the real estate business as
long as the Company would own a majority of the Voting Stock and
a majority of the value of the economic interests in such Person.
"Person" means any individual, corporation, partnership, business trust,
joint venture, association, joint stock company, trust, unincorporated
organization, real estate investment trust, limited liability company or other
entity, or government or any agency or political subdivision thereof.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of such
Person's preferred or preference stock, whether now outstanding, or issued
after the Issue Date, and including, without limitation, all classes and
series of preferred or preference stock of such Person.
"Qualified Capital Stock" means any and all Capital Stock of such Person
other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any class or series of Capital Stock
that, either by its terms, by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise, is, or upon the
happening of an event or passage of time would be, required to be redeemed
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prior to the final Stated Maturity of the Notes or is redeemable at the option
of the holder thereof at any time prior to such final Stated Maturity, or is
convertible into or exchangeable for debt securities at any time prior to such
final Stated Maturity.
"Reinvestment Rate" means 0.375 percent plus the arithmetic mean of the
yields under the heading "Week Ending" published in the most recent
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed or paid. If
no maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the
purposes of calculating the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the Make-Whole Amount
shall be used. If the format or content of the Statistical Release changes in
a manner that precludes determination of the Treasury yield in the above
manner, then the Treasury yield shall be determined in the manner that most
closely approximates the above manner, as reasonably determined by the
Company.
"Restricted Subsidiary" means any Subsidiary of the Company that has not
been designated as an "Unrestricted Subsidiary." On the Issue Date, all
Subsidiaries of the Company will be Restricted Subsidiaries.
"S&P" means Standard and Poor's Rating Services, a division of the
McGraw-Hill Companies and its successors.
"Servicing Rights" means, at any date of determination, the mortgage loan
servicing rights and related receivables owned by the Company and its
Restricted Subsidiaries.
"Servicing Secured Indebtedness'' means, Debt of the Company or its
Restricted Subsidiaries under any agreement or facility, other than Mortgage
Warehouse Debt, that is secured by, among other things, a first priority
security interest in Servicing Rights, and is advanced in an amount not to
exceed the value of such Servicing Rights.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act of 1934, as amended, as such
Regulation is in effect on the date of the Indenture.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is
due and payable, and, when used with respect to any other Indebtedness, means
the date specified in the instrument governing such Indebtedness as the fixed
date on which the principal of such Indebtedness, or any installment of
interest thereon, is due and payable.
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"Statistical Release'' means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which reports yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under
the Indenture, then such other reasonably comparable index which shall be
designated by the Company.
"Subordinated Indebtedness" means Indebtedness of the Company that is
expressly subordinated in right of payment to the Notes.
"Subsidiary" means a Person a majority of the voting power of the voting
equity securities, or a majority of the value of the equity interests, of
which are owned, directly or indirectly, by the Company and/or by one or more
Subsidiaries of the Company.
"Unrestricted Subsidiary" means any Subsidiary of the Company that the
Company has classified as an "Unrestricted Subsidiary" and that has not been
reclassified as a Restricted Subsidiary, pursuant to the terms of the
Indenture.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors,
managers, trustees or other voting members of the governing body of any Person
(irrespective of whether or not, at the time, stock of any other class or
classes shall have, or might have, voting power by reason of the happening of
any contingency).
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary of
the Company of which 100 percent of Capital Stock is owned, directly or
indirectly, by the Company or another Wholly Owned Restricted Subsidiary of
the Company, including CRIIMI MAE Services Limited Partnership.
ARTICLE FOUR
EVENTS OF DEFAULT
SECTION 4.01. ADDITIONAL EVENT OF DEFAULT. Pursuant to Section 301(16)
of the Indenture, so long as any of the Notes are Outstanding, the following
event shall replace Section 501(c) of the Indenture as an Event of Default
with respect to the Notes:"A default in the performance, or breach, of the
provisions described in Article Seven of the First Supplemental Indenture or
the failure to make or consummate a Change of Control Offer in accordance with
the provisions of Section 5.07 of the First Supplemental Indenture."Section
4.02. NOTICE OF DEFAULT OR EVENT OF DEFAULT. The Company shall deliver
written notice to the Trustee within 30 calendar days after any executive
officer of the Company becomes aware of the occurrence of any event which
constitutes, or with the giving of notice or the lapse of time or both would
constitute, a Default or Event of Default, describing such Default or Event of
Default, its status and what action the Company is taking or proposes to
take<PAGE>
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with respect thereto.
ARTICLE FIVE
COVENANTS OF THE COMPANY
Pursuant to Section 301(16) of the Indenture, so long as any of the Notes
are Outstanding, the Company covenants and agrees, in addition to the
covenants and agreements contained in Article Ten of the Indenture, as
follows:
SECTION 5.01. LIMITATION ON RESTRICTED PAYMENTS. (a) The Company will
not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, take any of the following actions:(i)declare, pay or set apart any
funds for the payment of any dividend on, or make any distribution to holders
of, any Capital Stock of the Company (other than dividends or distributions to
the extent payable in Qualified Capital Stock or in options, warrants or other
rights to acquire such shares of Qualified Capital Stock of the Company);
(ii)repurchase, redeem or otherwise acquire or retire for value, directly or
indirectly, any Capital Stock of the Company or any Restricted Subsidiary of
the Company (other than shares of Capital Stock of any Wholly Owned Restricted
Subsidiary) or any options, warrants or other rights to acquire such shares of
Capital Stock;(iii) declare, pay or set apart any funds for the payment of any
dividend on, or make any distribution on any shares of Capital Stock of any
Restricted Subsidiary to any Person (other than with respect to any shares of
Capital Stock held by the Company or any Wholly Owned Restricted Subsidiary
and other than pro rata dividends or distributions on a class of Capital Stock
of any Restricted Subsidiary the majority of which is owned by the Company or
a Wholly Owned Restricted Subsidiary; provided that no Restricted Subsidiary
shall declare or pay such pro rata dividend or distribution on its Capital
Stock (other than to the Company or a Wholly Owned Restricted Subsidiary) at a
time when it has outstanding Debt owed to the Company or a Wholly Owned
Restricted Subsidiary);(iv) make any principal payment on, or repurchase,
redeem, defease or otherwise acquire or retire for value, prior to any
scheduled principal payment, sinking fund payment or maturity, any
Subordinated Indebtedness; or(v) make any Investment in any Person, including
an Unrestricted Subsidiary, other than a Permitted Investment;(each of the
foregoing actions described in clauses (i) through (v) above, other than any
such action that is a Permitted Payment (as defined below), is referred to
herein as a "Restricted Payment"), unless immediately after giving effect to
the proposed Restricted Payment (the amount of any such Restricted Payment, if
other than cash, as determined in good faith by the Board of Directors of the
Company, whose determination shall be conclusive and evidenced by a Board
Resolution), (1) no Default or Event of Default shall have occurred and be
continuing, (2) the Company could incur at least $1.00 of additional Debt
(other than Permitted Indebtedness) pursuant to Section 5.02 hereof; and
(3) the aggregate amount of all such Restricted Payments by the Company and
its Restricted Subsidiaries declared or made after the Issue Date does not
exceed the sum of:(A) (i) so long as the Company maintains its status as a
REIT under the Internal Revenue Code of 1986, as amended (the "Code"), 100
percent of the "real estate investment trust taxable income" of the Company as
determined under Section 857(b)(2) of the Code or any successor provision
computed prior to taking into account any deductions allowed pursuant to
Section 857(b)(2) of<PAGE>
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the Code and computed after giving effect to any net deficit in "real estate
investment trust taxable income" for prior years, whether or not such deficit
is deductible as a net operating loss carryforward for the year of
determination, accrued on a cumulative basis during the period commencing on
October 1, 1997 and ending on the last day of the Company's most recent fiscal
quarter ending prior to the date of such Restricted Payment or (ii) in the
event the Company no longer qualifies as a REIT under the Code, the sum of
(a) 50 percent of the aggregate cumulative Adjusted Consolidated Net Income
(or if such aggregate cumulative Adjusted Consolidated Net Income shall be a
loss, minus 100 percent of such loss) accrued on a cumulative basis during the
period commencing on the first day of the fiscal quarter following the failure
of the Company to qualify as a REIT under the Code and ending on the last day
of the Company's most recent fiscal quarter ending prior to the date of such
Restricted Payment, and (b) 100 percent of any cumulative amount available
under clause (i) above for the period commencing October 1, 1997 and ending on
the last day of the Company's most recent fiscal quarter ending prior to the
failure of the Company to qualify as a REIT under the Code (or minus 100
percent of any such amount if a deficit); plus(B) the aggregate of the Net
Cash Proceeds received by the Company after October 1, 1997 from the issuance
or sale (other than to any of its Restricted Subsidiaries) of Qualified
Capital Stock of the Company (including upon the exercise of options, warrants
or rights) or warrants, options or rights to purchase shares of Qualified
Capital Stock of the Company; plus(C) the aggregate of the Net Cash Proceeds
received by the Company after October 1, 1997 from the issuance or sale (other
than to any of its Restricted Subsidiaries) of any debt securities or
Redeemable Capital Stock that is subsequently converted into or exchanged for
Qualified Capital Stock of the Company plus (without duplication) any
additional Net Cash Proceeds received by the Company at the time of such
conversion or exchange; plus(D) 100 percent of the net reduction in
Investments, subsequent to the Issue Date, in any Person, resulting from
payments of interest on Debt, dividends, repayments of loans or advances, or
other transfers of property (but only to the extent such interest, dividends,
repayments or other transfers of property are not included in the calculation
of "real estate investment trust taxable income" or Adjusted Consolidated Net
Income, as the case may be), in each case to the Company or any Restricted
Subsidiary from any Person (including, without limitation, from Unrestricted
Subsidiaries) or from redesignations of Unrestricted Subsidiaries as
Restricted Subsidiaries (valued in each case as provided in the definition of
Investments''), not to exceed in the case of any Person the amount of
Investments in such Person which were made subsequent to the Issue Date by the
Company or any Restricted Subsidiary and which were treated as a Restricted
Payment; plus(E) $15 million.
(b) Notwithstanding paragraph (a) above, the Company and any
Restricted Subsidiary may take the following actions so long as (with respect
to clauses (ii), (iii), (iv) and (v)) no Default or Event of Default shall
have occurred and be continuing (each being referred to as a "Permitted
Payment"):
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date such declaration complied
with the provisions of paragraph (a) above and such payment shall
be deemed to have been paid on such date of declaration for
purposes of the calculation required by the foregoing
paragraph<PAGE>
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(a);(ii) the purchase, redemption or other acquisition or
retirement for value of any shares of Capital Stock of the
Company in exchange for, or out of the Net Cash Proceeds of, a
substantially concurrent issuance and sale (other than to a
Restricted Subsidiary) of shares of Qualified Capital Stock of
the Company;(iii) make any principal payment on, or purchase,
redeem, defease or otherwise acquire or retire for value any
Subordinated Indebtedness in exchange for, or out of the Net Cash
Proceeds of, a substantially concurrent issuance and sale (other
than to a Restricted Subsidiary) of shares of Qualified Capital
Stock of the Company; and(iv) make any principal payment on, or
purchase, redeem, defease or otherwise acquire or retire for
value any Subordinated Indebtedness (referred to herein as the
"Subordinated Indebtedness being refinanced") in exchange for, or
out of the Net Cash Proceeds of a substantially concurrent
incurrence (other than to a Restricted Subsidiary) of,
Subordinated Indebtedness of the Company so long as (A) the
principal amount of such new Subordinated Indebtedness does not
exceed the principal amount (or, if such Subordinated
Indebtedness being refinanced provides for an amount less than
the principal amount thereof to be due and payable upon a
declaration of acceleration thereof, such lesser amount as of the
date of determination) of the Subordinated Indebtedness being
refinanced, plus the amount of any stated premium (including any
Make-Whole Amount) required to be paid in connection with such
refinancing pursuant to the terms of the Subordinated
Indebtedness being refinanced or the amount of any premium
actually paid at such time to refinance the Subordinated
Indebtedness as determined in good faith as being necessary by
the Company, plus, in either case, the amount of reasonable
expenses of the Company incurred in connection with such
refinancing, (B) such new Subordinated Indebtedness is
subordinated to the Notes to the same extent as the Subordinated
Indebtedness being refinanced and (C) (1) if the Subordinated
Indebtedness being refinanced has an Average Life to Stated
Maturity shorter than that of the Notes or a final Stated
Maturity earlier than the final Stated Maturity of the Notes,
such new Subordinated Indebtedness shall have an Average Life to
Stated Maturity no shorter than the Average Life to Stated
Maturity of such refinanced Subordinated Indebtedness and a final
Stated Maturity no earlier than the final Stated Maturity of such
refinanced Subordinated Indebtedness or (2) in all other cases,
each Stated Maturity of principal (or any required repurchase,
redemption or sinking fund payments) of such new Subordinated
Indebtedness shall be on or after the final Stated Maturity or
principal of the Notes; (v) make any distribution which is
necessary to maintain the Company's status as a REIT under the
Code; and (vi) the repurchase, redemption or other acquisition or
retirement for value of shares of Voting Stock of any Restricted
Subsidiary owned by Persons in an amount not to exceed 5 percent
of the
economic interest of such Restricted Subsidiary.The actions
described in clauses (i), (ii), (iii) and (v) of this paragraph
(b) shall be Restricted Payments that shall be permitted to be
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taken in accordance with this paragraph (b) but shall reduce the
amount that would otherwise be available for Restricted Payments
under clause (3) of paragraph (a) and that the actions described
in clauses (iv) and (vi) of this paragraph (b) shall be
Restricted Payments that shall be permitted to be taken in
accordance with this paragraph and shall not reduce the amount
that would otherwise be available for Restricted Payments under
clause (3) of paragraph (a).(c) Not later than the date of
making any Restricted Payment, the Company shall deliver to the
Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the
required calculations were computed.
SECTION 5.02. LIMITATIONS ON INCURRENCE OF DEBT. The Company will not,
and will not permit any Restricted Subsidiary to, incur any Debt (including
Acquired Debt), other than Permitted Indebtedness, provided that the Company
may incur Debt if at the time of such incurrence either (a) the ratio of
Adjusted Earnings Available for Fixed Charges to Adjusted Fixed Charges for
the period consisting of the four full consecutive fiscal quarters most
recently ended prior to the date on which such additional Debt is to be
incurred (after giving pro forma effect to (i) the incurrence of such Debt and
(if applicable) the application of the net proceeds therefrom, including to
refinance other Debt, as if such Debt was incurred, and the application of
such proceeds occurred, on the first day of such four-quarter period, (ii) the
incurrence, repayment or retirement of any other Debt by the Company and its
Restricted Subsidiaries since the first day of such four-quarter period as if
such Debt was incurred, repaid or retired on the first day of such
four-quarter 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 four-quarter period), and
(iii) the acquisition (whether by purchase, merger or otherwise) or
disposition (whether by sale, merger or otherwise) of any company, entity or
business acquired or disposed of by the Company or its Restricted Subsidiaries
(including the operations thereof), as the case may be, since the first day of
such four-quarter period, as if such acquisition or disposition occurred on
the first day of such four-quarter period) shall have been (x) greater than
1.75 to 1 for the period from the Issue Date to the date that is 18 months
following the Issue Date and (y) greater than 2.0 to 1 thereafter or (b) the
Adjusted Debt to Capital Ratio on a pro forma basis after giving effect to the
incurrence of such Debt and to the application of the proceeds therefrom as of
the end of the quarter most recently ended prior to the date on which such
additional Debt is to be incurred shall have been less than 2.0 to 1.
SECTION 5.03. LIMITATION ON AFFILIATE TRANSACTIONS. The Company will
not, and will not permit any of its Restricted Subsidiaries to, enter into or
permit to exist any transaction (including, without limitation, the purchase,
sale, lease or exchange of any property, any employee compensation
arrangements or the rendering of any service) with any Affiliate of the
Company or any Affiliate of any of the Company's Restricted Subsidiaries
unless the terms thereof (i) are no less favorable to the Company or such
Restricted Subsidiary, as the case may be, than those that could be obtained
at the time of such transaction in arm's length dealings with a Person who is
not such an Affiliate, (ii) if such transaction involves an amount in
excess<PAGE>
<PAGE>
of $5 million, (a) are set forth in writing and (b) have been approved by
resolution adopted by a majority of the members of the Company's or such
Restricted Subsidiary's board of directors having no personal stake in such
transaction and (iii) if such transaction involves an amount in excess of $15
million, have been determined (as set forth in a written opinion) by a
nationally recognized investment banking firm (or, if nationally recognized
investment banking firms do not customarily render opinions with respect to
transactions of such type, by a nationally recognized expert with experience
in evaluating the terms and conditions of transactions of such type) to be
fair, from a financial point of view, to the Company or such Restricted
Subsidiary, as the case may be, and the Company shall have delivered to the
Trustee the writings, resolutions and/or opinions, as the case may be,
required by clauses (ii) and (iii) of this sentence.
The provisions of the foregoing paragraph shall not apply to
(i) transactions between or among the Company and any of its Wholly Owned
Restricted Subsidiaries or between or among Wholly Owned Restricted
Subsidiaries of the Company, (ii) any Restricted Payment or Permitted Payment
permitted to be made under Section 5.01 hereof, (iii) customary directors fees
and indemnities, (iv) the purchase of any CMBS, Mortgage Loans or servicing
rights for Mortgage Loans by the Company or any of its Restricted Subsidiaries
in the ordinary course of the Company's or such Restricted Subsidiary's
business, (v) any issuance of securities or other payments, compensation,
benefits, awards or grants in cash, securities or otherwise pursuant to, or
the funding of, employment arrangements, stock options and stock ownership
plans approved by the Board of Directors of the Company, (vi) the grant of
stock options or similar rights to employees and directors of the Company or
any of its Restricted Subsidiaries pursuant to plans approved by the Board of
Directors of the Company and (vii) the payment of advisory and subadvisory
fees to the Company or any Restricted Subsidiary from American Insured
Mortgage Investors, American Insured Mortgage Investors L.P.-Series 85,
American Insured Mortgage Investors L.P.-Series 86 and American Insured
Mortgage Investors L.P.-Series 88.
SECTION 5.04. LIMITATION ON THE ISSUANCE OR SALE OF CAPITAL STOCK. The
Company will not permit any Restricted Subsidiary to issue any Capital Stock
(other than to the Company or a Restricted Subsidiary) and shall not permit
any Person (other than the Company or a Restricted Subsidiary) to own any
Capital Stock of any Restricted Subsidiary; provided, however, that the
foregoing shall not prohibit (a) the issuance and sale of all, but not less
than all, of the issued and outstanding Capital Stock of any Restricted
Subsidiary owned by the Company or any Restricted Subsidiary in accordance
with the provisions of the Indenture or (b) Capital Stock of a Restricted
Subsidiary issued and outstanding on the Issue Date and held by Persons other
than the Company or any Restricted Subsidiary or (c) the issuance or sale of
Capital Stock of a Restricted Subsidiary to Persons other than the Company or
a Restricted Subsidiary in the event that, upon the advice of counsel, the
Board of Directors of the Company determines that such issuance or sale is
necessary or advisable to maintain the Company's status as a REIT, provided,
however, that the Company or a Restricted Subsidiary continues to own at least
95 percent of the economic interest of such Restricted Subsidiary.
<PAGE>
<PAGE>
SECTION 5.05. LIMITATION ON THE PLEDGE OF CAPITAL STOCK. The Company
will not, directly or indirectly, create, incur, assume or suffer to exist any
Lien of any kind on or with respect to any of the Capital Stock of any
Restricted Subsidiary, whether owned on the Issue Date or thereafter acquired,
or any income, profits or proceeds therefrom, or assign or otherwise convey
any right to receive income thereon without making effective provision for
securing the Notes (x) equally and ratably with such Debt as to such property
for so long as such Debt will be so secured or (y) in the event such Debt is
Subordinated Indebtedness, prior to such Debt as to such property for so long
as such Debt will be so secured.
SECTION 5.06. BUSINESS ACTIVITIES. The Company will not, and will not
permit any Restricted Subsidiary to, engage in any business, except as set
forth in clause (k) of the definition of "Permitted Investments," other than
in the usual and ordinary course of the commercial mortgage business and other
than which is consistent with the industry standards in the commercial
mortgage industry.
SECTION 5.07. PURCHASE OF NOTES UPON A CHANGE OF CONTROL. (a) If a
Change of Control shall occur at any time, then each Holder of Notes shall
have the right to require that the Company purchase such Holder's Notes, in
whole or in part in integral multiples of $1,000, at a purchase price (the
"Change of Control Purchase Price") in cash in an amount equal to 101 percent
of the principal amount thereof, plus accrued interest, if any, to the date of
purchase (the "Change of Control Purchase Date"), pursuant to the offer
described below (the "Change of Control Offer") and the other procedures set
forth in this Section 5.07.
(b) Within 30 calendar days of the date of any Change of Control, the
Company, or the Trustee at the request and expense of the Company, shall send
to each Holder by first class mail, postage prepaid, a notice prepared by the
Company stating:
(i) that a Change of Control has occurred and a Change of Control offer
is being made pursuant to this Section 5.07, and that all Notes
that are timely tendered will be accepted for payment;
(ii) the Change of Control Purchase Price and the Change of Control
Purchase Date, which date shall be a date occurring no earlier than
30 calendar days nor later than 60 calendar days subsequent to the
date such notice is mailed;
(iii) that any Notes or portions thereof not tendered or accepted for
payment will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the Change of
Control Purchase Price with respect thereto, all Notes or portions
thereof accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest, from and after the Change of
Control Purchase Date;
(v) that any Holder electing to have any Notes or portions thereof
purchased pursuant to a Change of Control Offer will be required to
surrender such Notes, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of such Notes completed, to the
Paying Agent at the address specified in the notice, prior to the
close of business on the third Business Day preceding the Change of
Control Purchase Date;(vi) that any Holder shall be entitled to
withdraw such election if the Paying Agent receives, not later
than<PAGE>
<PAGE>
the close of business on the second Business Day preceding the
Change of Control Purchase Date, a telegram, telex, facsimile
transmission or letter, setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a statement
that such Holder is withdrawing such Holder's election to have such
Notes or portions thereof purchased pursuant to the Change of
Control Offer;
(vii) that any Holder electing to have Notes purchased pursuant to the
Change of Control Offer must specify the principal amount that is
being tendered for purchase, which principal amount at maturity
must be $1,000 or an integral multiple thereof;
(viii) that any Holder whose Notes are being purchased only in part will
be issued new Notes equal in principal amount to the unpurchased
portion of the Note or Notes surrendered, which unpurchased portion
will be equal in principal amount to $1,000 or an integral multiple
thereof; and(ix) any other information necessary to enable any
Holder to tender Notes and to have such Notes purchased pursuant to
this Section 5.07.
(c) On the Change of Control Purchase Date, the Company shall
(i) accept for payment any Notes or portions thereof properly
tendered pursuant to the Change of Control Offer;
(ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New
York City time, on such date, in immediately available funds, an
amount equal to the Change of Control Purchase Price in respect
of all Notes or portions thereof so accepted; and (iii) deliver,
or cause to be delivered, to the Trustee the Notes so accepted
together with an Officers' Certificate listing the Notes or
portions thereof tendered to the Company and accepted for
payment. The Paying Agent shall promptly send by first class
mail, postage prepaid, to each Holder of Notes or portions
thereof so accepted for payment, payment in the amount equal to
the Change of Control Purchase Price for such Notes or portions
thereof. The Company shall publicly announce the results of the
Change of Control Offer on or as soon as practicable after the
Change of Control Purchase Date.
(d) Upon surrender and cancellation of a Note that is purchased in part
pursuant to the Change of Control Offer, the Company shall promptly issue and
the Trustee shall authenticate and deliver to the surrendering Holder of such
Note, a new Note equal in principal amount to the unpurchased portion of such
surrendered Note; provided that each such new Note shall be in a principal
amount at maturity of $1,000 or an integral multiple thereof.
(e) The Company shall comply with the requirements of Section 14(e)
under the Exchange Act and any other securities laws or regulations, to the
extent such laws and regulations are applicable, in connection with the
purchase of Notes pursuant to a Change of Control Offer.
SECTION 5.08. REPORTS. The Company will file on a timely basis with the
Securities and Exchange Commission (the "Commission"), to the extent such
filings are accepted by the Commission and whether or not the Company has a
<PAGE>
<PAGE>
class of securities registered under the Exchange Act, the annual reports,
quarterly reports and other documents that the Company would be required to
file if it were subject to Section 13 or 15 of the Exchange Act. The Company
will also be required (a) to file with the Trustee, and provide to each Holder
of Notes, without cost to such Holder, copies of such reports and documents
within 30 days after the date on which the Company files such reports and
documents with the Commission or the date on which the Company would be
required to file such reports and documents if the Company were so required
and (b) if filing such reports and documents with the Commission is not
accepted by the Commission or is prohibited under the Exchange Act, to supply
at the Company's cost copies of such reports and documents to any prospective
holder of Notes promptly upon written request.
SECTION 5.09. WAIVER OF COVENANTS. The Company may omit in any
particular instance to comply with any term, provision or condition set forth
in Sections 5.01 to 5.08, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of the
Notes, 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<PAGE>
<PAGE>
effect.
ARTICLE SIX
RESTRICTED AND UNRESTRICTED SUBSIDIARIES
SECTION 6.01. DESIGNATION OF UNRESTRICTED SUBSIDIARIES. (a) The Company
may designate a Subsidiary (including a newly formed or newly acquired
Subsidiary) of the Company or any of its Restricted Subsidiaries as an
Unrestricted Subsidiary if such Subsidiary (a "Designation") if (i) no Default
shall have occurred and be continuing at the time of or after giving effect to
such Designation, (ii) (A) such Subsidiary has total assets of $1,000 or less
or (B) such Subsidiary has total assets of more than $1,000 and an Investment
in such Subsidiary in an amount equal to the fair market value of such
Subsidiary (the "Designation Amount") would then be permitted under Section
5.01(a) hereof and (iii) the Company would be permitted to incur $1.00 of
additional Debt (other than Permitted Indebtedness) pursuant to Section 5.02
at the time of and after giving effect to such Designation. Unless so
designated as an Unrestricted Subsidiary, any Person that becomes a Subsidiary
of the Company or any of its Restricted Subsidiaries shall be classified as a
Restricted Subsidiary thereof. In the event of any such Designation in
accordance with this Section 6.01(a), the Company shall be deemed to have made
an Investment constituting a Restricted Payment pursuant to Section 5.01 for
all purposes of the Indenture in the Designation Amount.
(b) The Company shall not, and shall not permit any Restricted
Subsidiary to, at any time (x) provide direct or indirect credit support for
or a guarantee of any Debt of any Unrestricted Subsidiary (including of any
undertaking, agreement or instrument evidencing such Debt), (y) be directly or
indirectly liable for any Debt of any Unrestricted Subsidiary or (z) be
directly or indirectly liable for any Debt which provides that the holder
thereof may (upon notice, lapse of time or both) declare a default thereon or
cause the payment thereof to be accelerated or payable prior to its final
scheduled maturity upon the occurrence of a default with respect to any Debt
of any Unrestricted Subsidiary (including any right to take enforcement action
against such Unrestricted Subsidiary), except, in the case of clause (x) or
(y), to the extent permitted under Sections 5.01, 5.02 and 5.03.
SECTION 6.02. REVOCATION OF UNRESTRICTED SUBSIDIARIES. The Company may
revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a
"Revocation"), whereupon such Subsidiary shall then constitute a Restricted
Subsidiary, if:
(i) no Default shall have occurred and be continuing at the time of
and
after giving effect to such Revocation; and
(ii) all Liens and Debt of such Unrestricted Subsidiary outstanding
immediately following such Revocation would, if incurred at such
time,
have been permitted to be incurred for purposes of the Indenture.
SECTION 6.03. REDESIGNATION OF SUBSIDIARIES. The designation of a
Subsidiary as an Unrestricted Subsidiary or the Revocation of an Unrestricted
Subsidiary in compliance with Sections 6.01 and 6.02 shall be made by the
Board of Directors pursuant to a Board Resolution, which, together with an
Officer's Certificate certifying compliance with this Article Six, shall be
delivered to the Trustee and<PAGE>
<PAGE>
shall be effective as of the date specified in such Board Resolution, (which
shall not be prior to the date such Board Resolution is delivered to the
Trustee).
ARTICLE SEVEN
MERGER, CONSOLIDATION OR SALE OF ASSETS
Pursuant to Section 301(16) of the Indenture, so long as any of the
Notes are outstanding, the following provision shall replace Section 801 of
the Indenture for purposes of the Notes:
"The Company will not, in a single transaction or through a series of
related transactions, consolidate with or merge with or into any other Person
or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any other Person or Persons,
or permit any Restricted Subsidiary to enter into any such transaction or
series of transactions, if such transaction or series of transactions, in the
aggregate, would result in the sale, assignment, conveyance, transfer, lease
or other disposition of all or substantially all of the properties and assets
of the Company and its Restricted Subsidiaries on a consolidated basis to any
other Person or Persons, unless at the time and after giving effect thereto
(a) either (i) if the transaction is a consolidation or merger, the Company
will be the continuing corporation or (ii) the Person (if other than the
Company) formed by such consolidation or into which the Company or such
Restricted Subsidiary is merged or the Person that acquires by sale,
assignment, conveyance, transfer, lease or disposition all or substantially
all the properties and assets of the Company and its Restricted Subsidiaries
on a consolidated basis (the "Surviving Entity") (A) will be a corporation
duly organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and (B) will expressly
assume, by a supplemental indenture, in form and substance satisfactory to the
Trustee, the Company's obligation for the due and punctual payment of the
principal of, premium, if any, and interest on all the Notes and the
performance and observance of every covenant of the Indenture or the Notes on
the part of the Company to be performed or observed; (b) immediately before
and immediately after giving effect to such transaction or series of
transactions on a pro forma basis (and treating any obligation of the Company
or any Restricted Subsidiary incurred in connection with or as a result of
such transaction or series of transactions as having been incurred at the time
of such transaction), no Default or Event of Default will have occurred and be
continuing, and (c) immediately after giving effect to such transaction or
series of transactions on a pro forma basis (on the assumption that the
transaction or series of transactions occurred on the first day of the
four-quarter period immediately prior to the consummation of such transaction or
series of transactions with the appropriate adjustments with respect to the
transaction or series of transactions being included in such pro forma
calculation), the Company (or the Surviving Entity if the Company is not the
continuing obligor under the Indenture) could incur at least $1.00 of
additional Debt (other than Permitted Indebtedness) under Section 5.02 hereof
.
Neither the Company nor any of its Restricted Subsidiaries may merge with or
into, or be consolidated with, an Unrestricted Subsidiary of the Company,
except to the extent such Unrestricted Subsidiary has been designated a
Restricted Subsidiary, as provided in the Indenture, in advance of or in
connection with such transaction."<PAGE>
<PAGE>
ARTICLE EIGHT
MISCELLANEOUS
SECTION 8.01. APPLICATION OF FIRST SUPPLEMENTAL INDENTURE. Each and
every term and condition contained in the First Supplemental Indenture that
modifies, amends or supplements the terms and conditions of the Indenture
shall apply only to the Notes created hereby and not to any future series of
Securities established under the Indenture.
SECTION 8.02. BENEFITS OF FIRST SUPPLEMENTAL INDENTURE. Nothing
contained in this First Supplemental Indenture shall or shall be construed to
confer upon any person other than a Holder of the Notes, the Company and the
Trustee any right or interest to avail itself or himself, as the case may be,
of any benefit under any provision of the In1denture or this First
Supplemental Indenture.
SECTION 8.03. DEFINED TERMS. All capitalized terms which are used
herein and not otherwise defined herein are defined in the Indenture and are
used herein with the same meanings as Indenture.
SECTION 8.04. EFFECTIVE DATE. This First Supplemental Indenture shall
be effective as of the date first above written and upon the execution and
delivery hereof by each of the parties hereto.
SECTION 8.05. GOVERNING LAW. This First Supplemental Indenture shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.06. COUNTERPARTS. This First Supplemental 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 instrument.
SECTION 8.07. SATISFACTION AND DISCHARGE. This Supplemental Indenture
shall cease to be of further force and effect upon compliance with Section 401
of the Indenture with respect to the Notes created hereby.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective officers
hereunto duly authorized, all as of the day and year first above written.
CRIIMI MAE INC.
Dated: November 21, 1997 By: /s/ H. William Willoughby
---------------------------
Name: H. William Willoughby
Title: President
STATE STREET BANK AND TRUST
COMPANY
as Trustee
Dated: November 21, 1997 By: /s/ Susan Freedman
------------------------
Name: Susan Freedman
Title:Vice President
<PAGE>
<PAGE>
ACKNOWLEDGMENT
STATE OF )
) ss:
COUNTY OF )
On the day of , 1997, before me personally came
----------------------------------- to me known, who, being by me duly sworn,
did depose and say that he is of CRIIMI MAE INC.,
----------------------------
one of the parties described in and which executed the foregoing instrument,
and that he signed his name thereto by authority of the Board of Directors.
{Notarial Seal}
----------------------------
Notary Public
COMMISSION EXPIRES
<PAGE>
<PAGE>
ACKNOWLEDGMENT
STATE OF )
) ss:
COUNTY OF )
On the day of , 1997, before me personally came
----------------------------------- to me known, who, being by me duly sworn,
did depose and say that he is of CRIIMI MAE INC.,
----------------------------
one of the parties described in and which executed the foregoing instrument,
and that he signed his name thereto by authority of the Board of Directors.
{Notarial Seal}
----------------------------
Notary Public
COMMISSION EXPIRES
<PAGE>
<PAGE>
STATE OF ) ss:
COUNTY OF )
On the day of November, 1997, before me personally came
, to me known, who, being by me duly sworn, did
-------------------------
depose and say that he/she is a of STATE STREET BANK AND TRUST
--------------
COMPANY, 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<PAGE>
<PAGE>
EXHIBIT A
CRIIMI MAE INC.
9 1/8 percent Senior Notes due 2002
No. 001 Principal Amount
CUSIP No. 226603AB4 $100,000,000
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS
A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A
NOMINEE OF SUCH SUCCESSOR.
CRIIMI MAE Inc., a Maryland corporation (the "Issuer," which term
includes any successor under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co. or registered assigns, the
principal sum of One Hundred Million Dollars on December 1, 2002 (the
"Maturity Date"), and to pay interest thereon from November 21, 1997 (or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for), semiannually in arrears on June 1 and December 1 of each year
(each, an "Interest Payment Date"), commencing on June 1, 1998, and on the
Maturity Date, at a rate of 9 1/8 percent per annum, until payment of said
principal sum has been made or duly provided for.
The interest so payable and punctually paid or duly provided for on an
Interest Payment Date and on the Maturity Date will be paid to the Holder in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on the "Regular Record Date" for such payment, which will be
the date 15 calendar days (regardless of whether such day is a Business Day
(as defined below)) next preceding such payment date or the Maturity Date, as
the case may be. Any interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holder on such Regular Record Date,
and shall be paid to the Holder in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on a subsequent
record date for the payment of such defaulted interest (which shall not be
less than five Business Days prior to the date of the payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of the Notes not less than 15 days preceding such
subsequent record date. Interest on this Note will be computed on the basis
of a 360-day year of twelve 30-day months.
The principal of this Note payable on the Maturity Date will be paid
against presentation and surrender of this Note at the office or agency of the
Issuer maintained for that purpose in Boston, Massachusetts with a drop
facility maintained in New York, New York. The Issuer hereby initially
<PAGE>
<PAGE>
designates the Corporate Trust Office of the Trustee in Boston, Massachusetts
as the office to be maintained by it where Notes may be presented for payment,
registration of transfer, or exchange and where notices or demands to or upon
the Issuer in respect of the Notes or the Indenture referred to on the reverse
hereof may be served.
Interest payable on this Note on any Interest Payment Date and on the
Maturity Date, as the case may be, will be the amount of interest accrued
during the applicable Interest Period (as defined below).
An "Interest Period" is each period from and including the immediately
preceding Interest Payment Date (or from and including November 21, 1997, in
the case of the initial Interest Period) to but excluding the applicable
Interest Payment Date or the Maturity Date, as the case may be. If any
Interest Payment Date other than the Maturity Date would otherwise be a day
that is not a Business Day, any amounts payable on such Interest Payment Date
will be paid on the succeeding Business Day with the same force and effect as
if it were paid on the date such payment was due. If the Maturity Date falls
on a day that is not a Business Day, principal and interest payable on the
Maturity Date will be paid on the succeeding Business Day with the same force
and effect as if paid on the date such payment was due, and no interest will
accrue on the amount so payable for the period from and after the Maturity
Date. "Business Day" means any day, other than a Saturday or a Sunday on
which banking institutions in New York, New York or Boston, Massachusetts are
not required or authorized by law or executive order to close.
Payments of principal and interest in respect of this Note will be made
by U.S. dollar check or by wire transfer (such a wire transfer to be made only
to a Holder of an aggregate principal amount of Securities in excess of
$2,000,000, and only if such Holder shall have furnished wire instructions in
writing to the Trustee no later than 15 days prior to the relevant payment
date and acknowledged that a wire transfer fee shall be payable) of
immediately available funds in such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public
and private debts.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place. Capitalized terms used
herein, including on the reverse hereof, and not defined herein or on the
reverse hereof shall have the respective meanings given to such terms in the
Indenture.
This Note shall not be entitled to the benefits of the Indenture referred
to on the reverse hereof or be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under such Indenture.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its duly authorized officers.
Dated: November 21, 1997 CRIIMI MAE INC., as Issuer
By:
-----------------------------------
Its:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY
By:
-----------------------------------
Authorized Officer
<PAGE>
<PAGE>
[REVERSE OF NOTE]
CRIIMI MAE INC.
9 1/8 percent Senior Notes due 2002
This security is one of a duly authorized issue of debentures, notes, bonds,
or other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an Indenture dated as of November 21, 1997 as
supplemented by the First Supplemental Indenture dated as of November 21,
1997 (as so supplemented, herein called the "Indenture"), duly executed and
delivered by the Issuer to State Street Bank and Trust Company, as Trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture with respect to the series of Securities of which this Note is a
part), to which Indenture and all Indentures supplemental thereto reference is
hereby made for a description of the rights, limitations of rights,
obligations, duties, and immunities thereunder of the Trustee, the Issuer, and
the Holders of the Securities, and of the terms upon which the Securities are,
and are to be, authenticated and delivered. The Securities may be issued in
one or more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest (if any)
at different rates, may be subject to different redemption provisions (if
any), and may otherwise vary as provided in the Indenture. This Security is
one of a series designated as the 9 1/8 percent Senior Notes due 2002 of the
Issuer
(the "Notes"), limited in aggregate principal amount to $100,000,000.
In case an Event of Default with respect to the 9 1/8 percent Senior Notes due
2002
shall have occurred and be continuing, the principal hereof and Make-Whole
Amount (if any) may be declared, and upon such declaration shall become, due
and payable, in the manner, with the effect, and subject to the conditions
provided in the Indenture.
The Issuer may redeem the Notes, at any time in whole or from time to time in
part, at the election of the Issuer, at a redemption price equal to the sum of
(i) the principal amount of the Notes being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Notes (the "Redemption Price"). Notice of any optional
redemption of any Notes will be given to Holders at their addresses, as shown
in the security register for the Notes, not more than 60 nor less than 30 days
prior to the date fixed for redemption. The notice of redemption will
specify, among other items, the Redemption Price and the principal amount of
the Securities held by such Holder to be redeemed. If less than all the Notes
are to be redeemed at the option of the Issuer, the Issuer will notify
the Trustee at least 45 days prior to giving notice of redemption to the
Holders (or such shorter period as is satisfactory to the Trustee) of the
aggregate principal amount of Notes to be redeemed and their redemption date.
The Trustee shall select, in such manner as it shall deem fair and
appropriate, Notes to be redeemed in whole or in part.<PAGE>
<PAGE>
The covenants set forth in Article Five of the First Supplemental
Indenture shall be fully applicable to the Notes. The First Supplemental
Indenture provides that, subject to certain conditions, if a Change of Control
(as defined in the First Supplemental Indenture) occurs, the Issuer shall be
required to make a Change of Control Offer (as defined in the First
Supplemental Indenture) for all or a specified portion of the Notes.
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of not less than a majority of the aggregate
principal amount of the Securities at the time Outstanding of all series to be
affected (voting as one class), evidenced as provided in the Indenture, to
execute supplemental Indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental Indenture or modifying in any manner the rights of the Holders of
the Securities of each series; provided, however, that no such supplemental
Indenture shall, without the consent of the Holder of each Security so
affected, (i) change the final maturity of any Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate or extend
the time of payment of any interest thereon, or impair or affect the rights of
any Holder to institute suit for the payment on any Security, or (ii) reduce
the aforesaid percentage of Securities, the Holders of which are required to
consent to any such supplemental Indenture, or (iii) reduce the percentage of
Securities, the Holders of which are required to consent to any waiver of
compliance with certain provisions of the Indenture or any waiver of certain
defaults thereunder. It is also provided in the Indenture that, with respect
to certain defaults or Events of Default regarding the Securities of any
series, the Holders of a majority in aggregate principal amount outstanding of
the Securities of such series (or, in the case of certain defaults or Events
of Default, all series of Securities) may on behalf of the Holders of all the
Securities of such series (or all of the Securities, as the case may be) waive
any such past default or Event of Default and its consequences, prior to any
declaration accelerating the maturity of such Securities, or, subject to
certain conditions, may rescind a declaration of acceleration and its
consequences with respect to such Securities. The preceding sentence shall
not, however, apply to a default in the payment of the principal of or
premium, if any, or interest on any of the Securities. Any such consent or
waiver by the Holder of this Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Security and any securities that may be
issued in exchange or substitution herefor, irrespective of whether or not any
notation thereof is made upon this Security or such other securities.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless (a) such Holder shall have previously
given the Trustee written notice of a continuing Event of Default, (b) the
<PAGE>
<PAGE>
Holders of not less than 25 percent in aggregate principal amount of the
Securities
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in aggregate principal amount of the Securities
Outstanding a direction inconsistent with such request, and (c) the Trustee
shall have failed to institute any such proceeding, for 60 days after receipt
of such notice, request and offer of indemnity. The foregoing shall not apply
to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof, Make-Whole Amount, if any, or interest
hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any Make-Whole Amount
and interest on this Security in the manner, at the respective times, at the
rate and in the coin or currency herein prescribed.
This Security is issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. Securities may be
exchanged for a like aggregate principal amount of Securities of this series
of other authorized denominations at the office or agency of the Issuer in
Boston, Massachusetts, in the manner and subject to the limitations provided
in the Indenture, but without the payment of any service charge except for any
tax or other governmental charge imposed in connection therewith.
This Security is not subject to a sinking fund requirement.
Upon due presentment for registration of transfer of Securities at the
office or agency of the Issuer in Boston, Massachusetts, a new Security or
Securities of the same series of authorized denominations in an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection
therewith.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture, in any Security or coupon appertaining thereto, or because
of any indebtedness evidenced hereby or thereby (including, without
limitation, any obligation or indebtedness relating to the principal of, or
premium or Make-Whole Amount, if any, interest or any other amounts due, or
claimed to be due, on this Security), or for any claim based thereon or
otherwise in respect thereof, shall be had against any promoter, as such, or
against any past, present or future shareholder, officer or director, as such,
of the Issuer or of any successor, either directly or through the Issuer or
any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding
or otherwise, all such liability being expressly waived and released by the
<PAGE>
<PAGE>
acceptance hereof and as part of the consideration for the issue hereof.
Prior to due presentation of a Security for registration of transfer, the
Issuer, the Trustee, and any authorized agent of the Issuer or the Trustee may
deem and treat the Person in whose name this Security is registered as the
absolute owner of this Security (whether or not this Security shall be overdue
and notwithstanding any notation of ownership or other writing hereon), for
the purpose of receiving payment of, or on account of, the principal hereof
and Make-Whole Amount, if any, and subject to the provisions herein and on the
face hereof; interest hereon, and for all other purposes, and neither the
Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee
shall be affected by any notice to the contrary.
The Indenture and this Security shall be governed by the law of the State
of New York, United States of America.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers to
be printed on the Securities of this series as a convenience to the Holders of
such Securities. No representation is made as to the correctness or accuracy
of such CUSIP numbers as printed on the Securities, and reliance may placed
only on the other identification numbers printed hereon.
<PAGE>
<PAGE>
ASSIGNMENT FORM AND CERTIFICATE OF TRANSFER
To assign this Security fill in the form below:
(I) or (we) assign and transfer this Security to
--------------------------------------------------------
(Insert assignee's social security or tax identification number, if any)
----------------------------------
----------------------------------
----------------------------------
(Print or type assignee's name, address and zip code)
Your signature:
---------------------------------
(Sign exactly as your name appears on the other side of this Security)
Date:
----------------------------
Signature Guarantee:
-----------------------------
Participant in a recognized Signature
Guarantee Medallion Program (or other signature guarantor program reasonably
acceptable to the Trustee.)
<PAGE>
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant
to Section 5.07 of the First Supplemental Indenture, check the box:
If you want to elect to have only a part of this Note purchased by the Issuer
pursuant to Section 5.07 of the First Supplemental Indenture, state the
amount:
$
--------------------
Dated: Your signature:
---------------- ----------------------------
(sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
------------------------------
Participant in a recognized Signature
Guarantee Medallion Program (or other
signature guarantor program reasonably
acceptable to the Trustee.)
<PAGE>
Exhibit B
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as
a
corporation in good standing under the laws of the State of Maryland.
(2) The Company has corporate power and authority to own, lease and
operate
its properties and to conduct its business as described in the Prospectus and
to
enter into and perform its obligations under, or as contemplated under, the
Underwriting Agreement and the applicable Terms Agreement.
(3) The Company is duly qualified as a foreign corporation to
transact
business and is in good standing in each jurisdiction identified in Exhibit B
hereto.
(4) Each Subsidiary has been duly incorporated or formed and is
validly existing as a corporation or limited partnership in good standing
under the
laws of the jurisdiction of its incorporation or formation, has corporate or
limited partnership power and authority 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 or limited partnership to transact business and is in good
standing in each jurisdiction identified in Exhibit B hereto. Except as
otherwise
stated in the Registration Statement and the Prospectus, all of the issued and
outstanding capital stock or partnership interest of each Subsidiary has been
duly
authorized and is validly issued, fully paid and non-assessable and, to the
best of
our knowledge, is owned by the Company, directly or through subsidiaries, free
and
clear of any perfected security interest, mortgage, pledge, lien, encumbrance,
claim or equity. None of the outstanding shares of capital stock or
partnership
interest of any Subsidiary was issued in violation of preemptive or, to our
knowledge, any other similar rights of any securityholder of such Subsidiary.
(5) The authorized, issued and outstanding shares of capital stock of
the
Company is as set forth in the column entitled "Actual" under the caption
"Capitalization" (except for subsequent issuances thereof, if any,
contemplated
under the Underwriting Agreement and the Terms Agreement, pursuant to
reservations,
agreements or employee benefit plans referred to in the Prospectus or pursuant
to
the exercise of convertible securities or options referred to in the
Prospectus).
Such shares of capital stock have been duly authorized and validly
issued by
the Company and are fully paid and non-assessable, and none of such shares of
capital stock were issued in violation of preemptive or, to our knowledge, any
other similar rights of any securityholder of the Company.
(6) The Underwriting Agreement and the Terms Agreement have been duly
authorized, executed and delivered by the Company.<PAGE>
<PAGE>
(7) The Underwritten Securities have been duly authorized by the
Company
for issuance and sale pursuant to the Underwriting Agreement and the
Terms Agreement. The Underwritten Securities, when issued and delivered by
the
Company pursuant to the Underwriting Agreement and the Terms Agreement against
payment of the consideration therefor specified in such Terms Agreement, will
be
validly issued, fully paid and non-assessable and will not be subject to any
statutory preemptive or, to our knowledge, any other similar rights of any
securityholder of the Company. No holder of the Underwritten Securities is or
will
be subject to personal liability by reason of being such a holder. The form
of
certificate used to evidence the Underwritten Securities is in due and proper
form
and complies with the applicable statutory requirements of the Maryland
General
Corporation Law, with any applicable requirements of the charter or bylaws of
the
Company and with the requirements of the New York Stock Exchange.
(8) The Underwritten Securities have been duly authorized by the
Company
for issuance and sale pursuant to the Underwriting Agreement and the
applicable
Terms Agreement. The applicable Preferred Stock, when issued and delivered by
the
Company pursuant to the Underwriting Agreement and such Terms Agreement
against
payment of the consideration specified in such Terms Agreement, will be
validly
issued, fully paid and non-assessable and will not be subject to any statutory
preemptive or, to our knowledge, any other similar rights of any
securityholder of
the Company. No holder of such Preferred Stock is or will be subject to
personal
liability by reason of being such a holder. The form of certificate used to
evidence the Preferred Stock is in valid form and complies with the applicable
statutory requirements, with any applicable requirements of the charter or
by-laws
of the Company and with the requirements of the New York Stock Exchange. The
applicable Articles Supplementary for such Preferred Stock are in full force
and
effect.
(9) The Underwritten Securities have been duly authorized by the
Company
for issuance and sale pursuant to the Underwriting Agreement and the
applicable
Terms Agreement. The Underwritten Securities, when issued and authenticated
in the
manner provided for in the applicable Indenture and delivered against payment
of
the consideration therefor specified in such Terms Agreement, will constitute
valid
and legally binding obligations of the Company, enforceable against the
Company in
accordance with their terms, except as the enforcement thereof may be limited
by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating
to or affecting creditors' rights generally or by general equitable
principles, and
except further as enforcement thereof may be limited by (A) requirements that
a
claim with respect to any Debt Securities denominated other than in U.S.
dollars
or a foreign or composite currency judgment in respect of such claim) be
converted
into U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to
applicable law or (B) governmental authority to limit, delay or prohibit the
making
of payments outside the United States. The Underwritten Securities are in the
form
contemplated by, and each registered holder thereof is entitled to the
benefits of,
the applicable Indenture.
(10) The Underwritten Securities have been duly authorized by the
Company
for issuance and sale pursuant to the Underwriting Agreement and the
applicable
Terms Agreement. The Underwritten Securities, when issued and authenticated
in the
manner provided for in the applicable Warrant Agreement and delivered against
payment of the consideration therefor specified in such Terms Agreement,
will<PAGE>
<PAGE>
constitute valid and legally binding obligations of the Company, entitled to
the
benefits provided by such Warrant Agreement and enforceable against the
Company in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating
to or affecting creditors' rights generally or by general equitable
principles.
(11) Each applicable Warrant Agreement has been duly authorized,
executed
and delivered by the Company and (assuming due authorization, execution and
delivery thereof by the applicable Warrant Agent) constitutes a valid and
legally
binding agreement of the Company, enforceable against the Company in
accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles.
(12) The applicable Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and
delivery
thereof by the applicable Trustee) constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance with
its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
(13) The Underlying Securities have been duly authorized and reserved
for
issuance by the Company upon exercise of the Common Stock, Preferred Stock,
Debt
Securities or Warrants. The Underlying Securities, when issued upon such
conversion, will be validly issued, fully paid and non-assessable and will not
be
subject to preemptive or other similar rights of any securityholder of the
Company.
No holder of the Underlying Securities is or will be subject to personal
liability
by reason of being such a holder. The Underlying Securities have been duly
authorized for issuance by the Company upon conversion of the related
Preferred
tock. The Underlying Securities, when issued and authenticated in the manner
provided for in the applicable Indenture and delivered in accordance with the
terms
of the related Preferred Stock will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles, and
except further as enforcement thereof may be limited by (A) requirements that
a
claim with respect to any Debt Securities denominated other than in U.S.
dollars
(or a foreign or composite currency judgment in respect of such claim) be
converted
into U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to
applicable law or (B) governmental authority to limit, delay or prohibit the
making
of payments outside the United States.
(14) The Underwritten Securities being sold pursuant to the Terms
Agreement
conform, in all material respects, to the legal description thereof contained
in
the Prospectus and are in substantially the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration Statement.
(15) The information in the Prospectus under "Description of Capital
Stock-
Common Shares" and "Certain United States Federal Income Tax Considerations"
and in
the Annual Report on Form 10-K under "Legal Proceedings" and "Certain
Relationships<PAGE>
<PAGE>
and Related Transactions" and in the Registration Statement under Item 15, to
the
extent that it constitutes matters of law, summaries of legal matters, the
Company's
charter and bylaws or legal proceedings, or legal conclusions, has been
reviewed by
us and is correct in all material respects and our opinion set forth under
"Certain
United States Federal Income Tax Considerations" is confirmed.
(16) The execution, delivery and performance of the Underwriting
Agreement,
the Terms Agreement and the consummation of the transactions contemplated in
the
Underwriting Agreement and the Terms Agreement (including the issuance and
sale of
the Underwritten Securities and the use of the proceeds from the sale of the
Underwritten Securities as described under the caption "Use of Proceeds") and
compliance by the Company with its obligations thereunder (i) to our
knowledge, do
not and will not, whether with or without the giving of notice or passage of
time
or both, conflict with or constitute a breach of, or default or Repayment
Event
under, or result in the creation or imposition of any lien, charge or
encumbrance
upon any property or assets of the Company or any of its Subsidiaries pursuant
to,
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note,
lease or any other agreement or instrument identified on Exhibit C hereto
which
Exhibit includes all material agreements and instruments of the Company and
its
Subsidiaries known to us (collectively, the "Material Contracts"), to which
the
Company or any of its Subsidiaries is a party or by which it or any of them
may be
bound, or to which any of the assets, properties or operations of the Company
or
any of its Subsidiaries is subject, except for such conflicts, breaches,
defaults,
events or liens, charges or encumbrances that would not result in a Material
Adverse Effect, (ii) do not and will not result in any violation of the
provisions
of the charter, by-laws or partnership agreement of the Company or any of its
Subsidiaries, and (iii) to our knowledge, based upon our review of those
United
States and Maryland laws, rules and regulations, which in our experience, are
normally applicable to transactions of the type contemplated by the
Underwriting
Agreement and the Terms Agreement, do not and will not result in any violation
of
any applicable law, statute, rule, regulation, judgment, order, writ or
decree,
known to us, of any government, government instrumentality or court, domestic
or
foreign, having jurisdiction over the Company or any of its Subsidiaries or
any of
their assets, properties or operations except for such violations that would
not
result in a Material Adverse Effect.
(17) To our knowledge, (a) neither the Company nor any of the
Subsidiaries
is in violation of its charter, bylaws or partnership agreement and (b) no
default
by the Company or any of the Subsidiaries exists in the due performance or
observance of any Material Contract.
(18) To our knowledge, there is not pending or threatened any action,
suit,
proceeding, inquiry or investigation to which the Company or any of its
Subsidiaries thereof is a party or to which the assets, properties or
operations of
the Company or any of its Subsidiaries thereof is subject, before or by any
court
or governmental agency or body, domestic or foreign, which might reasonably be
expected to result in a Material Adverse Effect or<PAGE>
<PAGE>
which might reasonably be expected to materially and adversely affect the
assets,
properties or operations thereof or the consummation of the transactions
contemplated under the Underwriting Agreement, the applicable Terms Agreement
or
any applicable indenture or the performance by the Company of its obligations
thereunder.
(19) To our knowledge, there are no statutes or regulations that are
required to be described in the Prospectus that are not described as required.
(20) To our knowledge, there are no franchises, contracts,
indentures,
mortgages, loan agreements, notes, leases or other instruments required to be
described or referred to in the Registration Statement or to be filed as
exhibits
thereto other than those described or referred to therein or filed or
incorporated
by reference as exhibits thereto, and the descriptions thereof or references
thereto are correct in all material respects.
(21) The Registration Statement has been declared effective under the
1933
Act. Any required filing of the Prospectus pursuant to Rule 424(b) has been
made
in the manner and within the time period required by Rule 424(b). To the best
of
our knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose
have been initiated or are pending or threatened by the Commission.
(22) The Registration Statement and the Prospectus, excluding the
documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the
financial statements and supporting schedules included therein or omitted
therefrom
and each Trustee's Statement of Eligibility on Form T-1 (the "Form T-1s"), as
to
which we express no opinion) complied as to form in all material respects with
the
requirements of the 1933 Act and the 1933 Act Regulations, as applicable;
provided,
however, that we express no view as to (i) the financial statements and the
financial statement schedules contained or incorporated by reference therein
or
omitted therefrom (including the notes to the financial statements and the
auditors' reports on the financial statements) and (ii) the other financial
information contained or incorporated by reference therein or omitted
therefrom
(including the information set forth under "The Portfolio").
(23) The documents incorporated by reference in the Prospectus (other
than
the financial statements and supporting schedules therein or omitted
therefrom, as
to which we 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 1933 Act or the 1934 Act, as applicable, and the rules
and
regulations of the Commission thereunder; provided, however, that we express
no
view as to (i) the financial statements and the financial statement schedules
contained or incorporated by reference therein or omitted therefrom (including
the
notes to the financial statements and the auditors' reports on the financial
statements) and (ii) the other financial information contained or incorporated
by
reference therein or omitted therefrom (including the information set forth
under
"The Portfolio").
<PAGE>
<PAGE>
(24) No filing with, or authorization, approval, consent, license,
order
registration, qualification or decree of, any court or governmental authority
or
agency is necessary or required for the performance by the Company of its
obligations under the Underwriting Agreement or the Terms Agreement or in
connection with the transactions contemplated under the Underwriting Agreement
or
the Terms Agreement other than under the 1933 Act, the 1933 Act Regulations,
the
1939 Act and the 1939 Act Regulations, which have been obtained, or as may be
required under state securities or blue sky laws or regulations.
(25) Neither the Company nor any of its Subsidiaries is required to
register as an "investment company" within the meaning of the Investment
Company Act
of 1940, as amended.
(26) The Company and CRI Liquidating REIT, Inc. were each organized
and
have operated in conformity with the requirements for qualification and
taxation as
a real estate investment trust ("REIT") under the Code for each of the taxable
years that they have been in existence, and the Company's and CRI Liquidating
REIT
Inc.'s current organization and method of operation will enable them to
continue to
meet the requirements for qualification as a REIT for each of their subsequent
taxable years. The Company's qualification as a REIT under the Code will
depend
upon the Company's ability to meet, through actual operating results,
distribution
levels, diversity of stock ownership and the various income and asset
qualification
tests imposed under the Code. Such operating results may not be reviewed by
us as
Counsel, and accordingly, no assurance can be given that the actual results of
the
Company's operations for any one taxable year will satisfy the requirements
under
the Code for REIT qualification. Moreover, certain aspects of the Company's
operations have not been considered by the courts or the Internal Revenue
Service.
There can be no assurance that the courts or the Internal Revenue Service will
agree with our opinion. In addition, qualification as a REIT depends on
future
transactions and events that cannot be known at this time. For a discussion
relating the law to the facts, and the legal analysis underlying the opinions
set
forth in this letter, we incorporate by reference the discussion of federal
income
tax issues in the sections of the Registration Statement under the headings
"CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS" and "RISK FACTORS --
CERTAIN TAX CONSIDERATIONS."
In addition to the foregoing opinions, nothing has come to our attention
that
would lead us to believe that the Registration Statement or any post-effective
amendment thereto (except for financial statements and schedules and other
financial data included therein or omitted therefrom and for the Form T-1s, as
to
which we make no statement), at the time the Registration Statement or any
post-
effective amendment thereto (including the filing of the Company's Annual
Report on
Form 10-K with the Commission) became effective or at the date of the
applicable
Terms Agreement, 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 the Prospectus or any amendment or
supplement thereto (except for financial statements and schedules and other
financial data included therein or omitted therefrom, as to which we make no
statement), at the time the Prospectus was issued, at the time any such
amended or
supplemented prospectus was issued or at the Closing Time, included or
includes an
untrue statement of a material
<PAGE>
<PAGE>
fact or omitted or omits to state a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which they were
made,
not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not
as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall
not
state that it is to be governed or qualified by, or that it is otherwise
subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
<PAGE>
<PAGE>
EXHIBIT T3F
CROSS REFERENCE SHEET
Reconciliation and Tie between Trust Indenture Act of 1939 (the "TIA" or
"Trust Indenture Act") and the Indenture, dated as of November 21, 1997,
between CRIIMI MAE Inc. and State Street Bank and Trust Company, as Trustee.
Trust Indenture Act Section Indenture Section
Sec. 310(a)(1)....................................607
(a)(2)....................................607
(b).......................................607, 608
Sec. 312(a).......................................704
Sec. 312(c).......................................701
Sec. 313(a).......................................702
(c).......................................702
Sec. 314(a).......................................703
(a)(4)...................................1009
(c)(1)....................................102
(c)(2)....................................102
(e).......................................102
Sec. 315(b).......................................601
Sec. 316(a) (last sentence).......................101 ("Outstanding")
(a)(1)(A).................................502, 512
(a)(1)(B).................................513
(b).......................................508
Sec. 317(a)(1)....................................503
(a)(2)....................................504
Sec. 318(a).......................................113
(c).......................................113
---------
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 Trust
Indenture Act, which provides that the provisions of Sections 310 to
and including 317 of the Trust Indenture Act are a part of and
govern every qualified indenture, whether or not physically
contained therein.
<PAGE>
<PAGE>
EXHIBIT T3G
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
-----------------
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) __
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
CRIIMI MAE Inc.
(Exact name of obligor as specified in its charter)
Maryland 52-1622022
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
11200 Rockville Pike
Rockville, Maryland 20852
(Address of principal executive offices) (Zip Code)
9 1/8 percent Senior Notes due 2002
(Title of indenture securities)<PAGE>
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to which
it is
subject.
Department of Banking and Insurance of The Commonwealth of Massachusetts,
100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington, D.C.,
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee or of its parent, State
Street
Corporation.
(See note on page 2.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
1. A copy of the articles of association of the trustee as now in
effect.
A copy of the Articles of Association of the trustee, as now in effect,
is on
file with the Securities and Exchange Commission as Exhibit 1 to Amendment No.
1 to
the Statement of Eligibility and Qualification of Trustee (Form T-1) filed
with the
Registration Statement of Morse Shoe, Inc. (File No. 22-17940) and is
incorporated
herein by reference thereto.
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the articles of association.
A copy of a Statement from the Commissioner of Banks of Massachusetts that
no
certificate of authority for the trustee to commence business was necessary or
issued is on file with the Securities and Exchange Commission as Exhibit 2 to
Amendment No. 1 to the Statement of Eligibility and Qualification of Trustee
(Form
T-1) filed with the Registration Statement of Morse Shoe,<PAGE>
<PAGE>
Inc. (File No. 22-17940) and is incorporated herein by reference thereto.
3. A copy of the authorization of the trustee to exercise corporate
trust
powers, if such authorization is not contained in the documents specified in
paragraph (1) or (2), above.
A copy of the authorization of the trustee to exercise corporate trust
powers is
on file with the Securities and Exchange Commission as Exhibit 3 to Amendment
No. 1
to the Statement of Eligibility and Qualification of Trustee (Form T-1) filed
with
the Registration Statement of Morse Shoe, Inc. (File No. 22-17940) and is
incorporated herein by reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A copy of the by-laws of the trustee, as now in effect, is on file with
the
Securities and Exchange Commission as Exhibit 4 to the Statement of
Eligibility and
Qualification of Trustee (Form T-1) filed with the Registration Statement of
Eastern Edison Company (File No. 33-37823) and is incorporated herein by
reference
thereto.
<PAGE>
5. A copy of each indenture referred to in Item 4. if the obligor is in
default.
Not applicable.
6. The consents of United States institutional trustees required by
Section
321(b) of the Act.
The consent of the trustee required by Section 321(b) of the Act is
annexed
hereto as Exhibit 6 and made a part hereof.
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.
A copy of the latest report of condition of the trustee published pursuant
to
law or the requirements of its supervising or examining authority is annexed
hereto
as Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters
peculiarly within the knowledge of the obligor or any underwriter for the
obligor,
the trustee has relied upon information furnished to it by the obligor and the
underwriters, and the trustee disclaims responsibility for the accuracy or
completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have
been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended,
the trustee, State Street Bank and Trust Company, a corporation organized and
existing under the laws of The Commonwealth of Massachusetts, has duly caused
this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto
duly authorized, all in the City of Boston and The Commonwealth of
Massachusetts,
on the 19th day of November, 1997.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Susan Freedman
---------------------------
NAME Susan Freedman
TITLE Vice President
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of
1939, as amended, in connection with the proposed issuance by CRIIMI MAE Inc.
of its 9 1/8 percent Senior Notes due 2002, we hereby consent that reports of
examination by Federal, State, Territorial or District authorities may be
furnished
by such authorities to the Securities and Exchange Commission upon request
therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Susan Freedman
----------------------------------
NAME Susan Freedman
TITLE Vice President
Dated: November 19, 1997
<PAGE>
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking
institution
organized and operating under the banking laws of this commonwealth and a
member of
the Federal Reserve System, at the close of business June 30, 1997, published
in
accordance with a call made by the Federal Reserve Bank of this District
pursuant
to the provisions of the Federal Reserve Act and in accordance with a call
made by
the Commissioner of Banks under General Laws, Chapter 172, Section 22(a).
Thousands of
ASSETS Dollars
Cash and balances due from depository institutions:
interest-bearing balances and currency and coin 1,842,337
Interest-bearing balances 8,771,397
Securities 10,596,119
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary 5,953,036
Loans and lease financing receivables:
Loans and leases, net of unearned income 5,769,090
Allowance for loan and lease losses 74,031
Allocated transfer risk reserve 0
Loans and leases, net of unearned income
and allowances 5,695,059
Assets held in trading accounts 916,608
Premises and fixed assets 374,999
Other real estate owned 755
Investments in unconsolidated subsidiaries 28,992
Customers' liability to this bank on acceptances
utstanding 99,209
Intangible assets 229,412
Other assets 1,589,526
---------
Total assets 36,097,449
----------
----------
LIABILITIES
Deposits:
In domestic offices 11,082,135
Noninterest-bearing 8,932,019
Interest-bearing 2,150,116
In foreign offices and Edge subsidiary 13,811,677
Noninterest-bearing 112,281
Interest-bearing 13,699,396
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary 6,785,263
Demand notes issued to the U.S. Treasury and Trading
Liabilities 755,676
Other borrowed money 716,013
Subordinated notes and debentures 0
Bank's liability on acceptances executed and outstanding 99,605
Other liabilities 841,566
Total liabilities 34,091,935
----------
EQUITY CAPITAL
Perpetual preferred stock and related 0
Common stock 29,931
Surplus 437,183
Undivided profits and capital reserves/Net
unrealized holding gains (losses) 1,542,695
Cumulative foreign currency translation adjustments (4,295)
Total equity capital 2,005,514
Total liabilities and equity capital 36,097,449
<PAGE>
<PAGE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above
named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal
Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition
and declare that it has been examined by us and to the best of our knowledge
and
belief has been prepared in conformance with the instructions issued by the
Board
of Governors of the Federal Reserve System and is true and correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5. A copy of each indenture referred to in Item 4. if the obligor is in
default.
Not applicable.
6. The consents of United States institutional trustees required by
Section
321(b) of the Act.
The consent of the trustee required by Section 321(b) of the Act is
annexed hereto as Exhibit 6 and made a part hereof.
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.
A copy of the latest report of condition of the trustee published
pursuant
to law or the requirements of its supervising or examining authority is
annexed
hereto as Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters
peculiarly within the knowledge of the obligor or any underwriter of the
obligor,
the trustee has relied upon the information furnished to it by the obligor and
the
underwriters, and the trustee disclaims responsibility for the accuracy or
completeness of such information.
The answer to Item 2. of this statement will be amended, if necessary, to
reflect any facts which differ from those stated and which would have been
required
to be stated if known at the date hereof.
<PAGE>
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended,
the trustee, State Street Bank and Trust Company, a corporation duly organized
and
existing under the laws of The Commonwealth of Massachusetts, has duly caused
this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto
duly authorized, all in the City of Boston and The Commonwealth of
Massachusetts,
on the 19th day of November, 1997
STATE STREET BANK AND TRUST COMPANY
By: /s/ Susan Freedman
---------------------------------
NAME Susan Freedman
TITLE Vice President
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of
1939, as amended, in connection with the proposed issuance by CRIIMI MAE Inc.
of its
9 1/8 percent Senior Notes due 2002, we hereby consent that reports of
examination
by Federal, State, Territorial or District authorities may be furnished by
such
authorities to the Securities and Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By /s/ Susan Freedman
-------------------------
NAME Susan Freedman
TITLE Vice President
Dated: November 19, 1997
