<PAGE>
As filed with the Securities and Exchange Commission on April 6, 1999
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------
UNITED INVESTORS REALTY TRUST
(Exact name of registrant as specified in its charter)
Texas 74-1464203
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
5847 San Felipe, Suite 850
Houston, Texas 77057
(713) 781-2860
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
----------------
Lewis H. Sandler
President and Chief Executive Officer
United Investors Realty Trust
5847 San Felipe, Suite 850
Houston, Texas 77057
(713) 781-2860
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
Copies to:
------------------------------------------
Bryan L. Goolsby
Gina E. Betts
Locke Liddell & Sapp LLP
2001 Ross Avenue, Suite 3000
Dallas, Texas 75201
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Approximate date of commencement of proposed sale to the public: from time to
time after the effective date of this Registration Statement. If the only
securities being registered on this form are being offered pursuant to dividend
or interest reinvestment plans, please check the following box. [ ] If any of
the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ] If this form is filed to
register additional securities for an offering pursuant to Rule 462(b) under the
Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] If this form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] If delivery of the prospectus
is expected to be made pursuant to Rule 434, please check the following box. [ ]
<TABLE>
<CAPTION>
<S>
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CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
Title of Each Class of Securities Amount to be Proposed Maximum Aggregate Proposed Maximum Amount of
to be Registered (2) Price Per Unit (3) Aggregate Registration Fee
Registered (1) Offering Price(2) (3)
- --------------------------------- -------------- -------------------------- --------------------- ----------------
<C> <C> <C> <C> <C>
Common Shares of Beneficial $ 100,000,000 $ (9) $100,000,000 $ 27,800(10)
Interest (no par value) (4), Preferred Shares of Beneficial Interest (no par
value) (5), Debt Securities (6), Securities Warrants (7) and Rights (8) </TABLE>
(1) This Registration Statement also covers delayed delivery contracts that may
be issued by the Registrant under which the party purchasing such contracts
may be required to purchase Debt Securities, Preferred Shares, Common
Shares, Securities Warrants or Rights. Such contracts may be issued
together with the specific Securities to which they relate. In addition,
Securities registered hereunder either may be sold separately or as units
comprised of more than one type of Security registered hereunder.
(2) In U.S. Dollars or the equivalent thereof denominated in one or more
foreign currencies or units of two or more foreign currencies or composite
currencies (such as European Currency Units).
(3) Estimated solely for the purpose of calculating the registration fee. This
Registration Statement is intended to register both the issuance of Common
Shares and Preferred Shares issued for sale directly by the Company, as
well as the issuance of such Common Shares and Preferred Shares upon the
conversion of the Debt Securities or the Preferred Shares, as appropriate,
or upon exercise of Securities Warrants or Rights. No separate
consideration will be received for Common Shares or Preferred Shares that
are issued upon conversion of Debt Securities or Preferred Shares
registered hereunder as the case may be. The aggregate maximum offering
price of all Securities issued pursuant to this Registration Statement will
not exceed $100,000,000.
(4) Such indeterminate principal amount of Debt Securities as may from time to
time be issued at indeterminate prices.
(5) Such indeterminate number of Preferred Shares as may be from time to time
be issued at indeterminate prices or issuable upon conversion of Debt
Securities or exercise of Securities Warrants or Rights.
(6) Such indeterminate number of Common Shares from time to time be issued at
indeterminate prices or issuable upon conversion of Debt Securities or
Preferred Shares registered hereunder, as the case may be, or exercise of
Securities Warrants or Rights.
(7) Such indeterminate number of Debt Securities Warrants, Preferred Shares
Warrants and Common Shares Warrants representing rights to purchase Debt
Securities, Preferred Shares and Common Shares, respectively, registered
pursuant to this Registration Statement, as may from time to time be issued
at indeterminate prices.
(8) Such indeterminate number of Preferred Share Rights and Common Share Rights
representing rights to purchase Preferred Shares and Common Shares,
respectively, registered pursuant to this Registration Statement, as may
from time to time be issued at indeterminate prices.
(9) Omitted pursuant to General Instruction II.D of Form S-3 under the Sections
Act of 1933, as amended. (10) Calculated pursuant to Rule 457(o) under the
Securities Act of 1933, as amended.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED APRIL 6, 1999.
PROSPECTUS
United Investors Realty Trust
$100,000,000
Common Shares, Preferred Shares,
Debt Securities, Securities Warrants and Rights
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By this prospectus, we will offer from time to time up to $100,000,000 of our:
COMMON SHARES;
PREFERRED SHARES;
DEBT SECURITIES;
SECURITIES WARRANTS; AND
RIGHTS.
We will provide the specific terms of these securities in supplements to this
prospectus. You should read this prospectus and the supplements carefully before
you invest in any of these securities.
We may offer the securities directly or through underwriters, agents or dealers.
The supplement will describe the terms of each plan of distribution. "Plan of
Distribution" below also provides more information on this topic.
------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved the securities discussed in the
prospectus, nor have they determined whether this prospectus is accurate or
adequate. Any representation to the contrary is a criminal offense.
The date of this prospectus is April 6, 1999
*THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. <PAGE>
ABOUT THE PROSPECTUS
This prospectus is part of a "shelf" registration statement that we filed with
the SEC. By using a shelf-registration statement, we may sell, from time to
time, in one or more offerings, any combination of the securities described in
this prospectus. The total dollar amount of the securities we sell through these
offerings will not exceed $100,000,000. This prospectus only provides you with a
general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that contains specific
information about the terms of the securities being offered. The prospectus
supplement may also add, update or change information contained in this
prospectus. You should read both this prospectus and any prospectus supplement
together with the additional information described under the heading "WHERE YOU
CAN FIND MORE INFORMATION."
WHERE YOU CAN FIND MORE INFORMATION
We are a public company and file annual, quarterly and special reports, proxy
statements and other information with the SEC. You may read and copy any
document we file at the SEC's public reference room at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You can request copies of these documents by writing to
the SEC and paying a fee for the copying cost. Please call the SEC at
1-800-SEC-0330 for more information about the operation of the public reference
room. Our SEC filings are also available to the public at the SEC's web site at
http://www.sec.gov. In addition, you may read and copy our SEC filings at the
offices of the Nasdaq Stock Market at 33 Whitehall Street, 8th Floor, New York,
New York 10004, 1735 K Street, NW, Washington, D.C. 20006, 2500 Sand Hill Road,
Suite 220, Menlo Park, California 94025 or Durrant House, 8113 Chiswell Street,
London, England EC1Y4XY. Our website address is http://www.uirt.com.
This prospectus is only part of a registration statement we filed with the SEC
under the Securities Act of 1933, as amended, and therefore omits certain
information contained in the registration statement. We have also filed exhibits
and schedules to the registration statement that we have excluded from this
prospectus, and you should refer to the applicable exhibit or schedule for a
complete description of any statement referring to any contract or document. You
may inspect or obtain a copy of the registration statement, including exhibits
and schedules, as described in the previous paragraph.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with it.
This means that we can disclose important information to you by referring you to
those documents. The information incorporated by reference is considered to be
part of this prospectus and the information we file later with the SEC will
automatically update and supersede this information.
We incorporate by reference the documents listed below and any future filings
made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until this offering is completed:
- Annual Report on Form 10-K for the year ended December 31,1998.
- Current Report on Form 8-K/A filed March 16, 1999.
You may request a copy of these filings at no cost by writing or telephoning the
Investor Relations Department at the following address and telephone number:
United Investors Realty Trust
5847 San Felipe
Suite 850
Houston, Texas 77057
(713) 781-2860
<PAGE>
THE COMPANY
We are a real estate investment trust based in Houston, Texas. We acquire,
develop and operate neighborhood and community shopping centers in the "sunbelt"
region of the United States. We have engaged in these activities since 1989.
As of December 31, 1998, we owned controlling interest in 24 shopping centers
and one property under development. The operating shopping centers consists of
approximately 3 million square feet of gross leasable area. These properties
range in size from approximately 26,000 to approximately 316,000. Our properties
are located in Texas (17 properties) and the following states: Arizona (3),
Florida (2) and Tennessee (2). Our shopping centers are anchored primarily by
national and regional supermarkets, drugstores and other retailers that sell
basic necessity-type items. For fiscal year ended December 31, 1998, no single
tenant represented more than 3% of our revenues. On December 31, 1998, our
properties were approximately 95% leased.
Our executive offices are located at 5847 San Felipe, Suite 850, Houston, Texas
77057, and our telephone number (713) 781-2860.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
We have made statements in this prospectus and any supplement that are
"forward-looking" in that they do not discuss historical fact, but instead note
future expectations, projections, intentions or other items relating to the
future. These forward-looking statements include those made in the documents
incorporated by reference in this prospectus.
Forward-looking statements are subject to known and unknown risks, uncertainties
and other facts that may cause our actual results or performance to differ
materially from those contemplated by the forward-looking statements. Many of
those factors are noted in conjunction with the forward-looking statements in
the text. Other important factors that could cause actual results to differ
include:
- - Our inability to identify properties to acquire, effect acquisitions or
successfully integrate acquired properties and operations could result in
decreased market penetration, adverse effects on results of operations and
other adverse results. This same result could occur if the results of our
efforts to implement our property development strategy fail or we
experience public opposition to our development plans, construction delays
or cost overruns or if we are unable to obtain necessary permits.
- - The effect of economic conditions. If an economic downturn occurs, the
demand and rents for neighborhood and community shopping centers could
fall and adversely affect our financial condition and results of
operations. Our financial condition and results of operations could also
be adversely affected if our tenants are unable to make their lease
payments or fail to renew their leases.
- - Failure to qualify as a REIT. We elected to be taxed as a REIT for federal
income tax purposes for our taxable year ended December 31, 1998, and
expect to continue to elect such status. Although we believe that we were
organized and have been operating in conformity with the requirements for
qualification as a REIT under the Internal Revenue Code of 1986, as
amended, we cannot assure you that we will continue to qualify as a REIT.
Qualification as a REIT involves the application of highly technical and
complex Internal Revenue Code provisions for which there are only limited
judicial or administrative interpretations. If in any taxable year we fail
to qualify as a REIT, we would not be allowed a deduction for distributions
to shareholders for computing taxable income and would be subject to
federal taxation at regular corporate rates. Unless entitled to relief
under certain statutory provisions, we would also be disqualified from
treatment as a REIT for the four taxable years following the year during
which qualification was lost. As a result, our ability to make
distributions to our shareholders would be adversely affected. See "Federal
Income Tax Consequences - REIT Qualification."
- - The costs of our capital. That cost depends on many factors, some of which
are beyond our control, such as interest rates, ratings, prospects and
outlook.
- - Actions of our competitors and our ability to respond to those actions. We
seek to remain competitive in the neighborhood and community shopping
center real estate markets that we currently serve.
- - Changes in government regulations, tax rates and similar matters. For
example, changes in real estate and zoning laws could adversely affect our
financial condition and results of operations.
- - Environmental uncertainties and natural disasters. Any unexpected material
environmental event or natural disaster that affects our properties could
adversely affect our financial condition and results of operations.
- - Unexpected Year 2000 Problems. We have completed our evaluation of the
risks of a material effect on our results of operations and financial
condition with respect to our management information systems and the year
2000 and do not believe that we will be materially affected by any future
costs to make our management information systems Year 2000 compliant. Our
application software, including our accounting and property management
software, have been certified by our vendors as Year 2000 compliant.
- - Other risks detailed in our other SEC reports or filings.
We do not promise to update forward-looking information to reflect actual
results or changes in assumptions or other factors that could affect those
statements.
<PAGE>
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities for general
corporate purposes, including working capital, acquisitions, repayment or
refinancing of debt, capital expenditures and other business opportunities. We
will describe in each prospectus supplement any proposed use of proceeds other
than for general corporate purposes.
DESCRIPTION OF CAPITAL SHARES
Our First Amended and Restated Declaration of Trust provides that we may issue
up to 550,000,000 shares of beneficial interest, consisting of 500,000,000
common shares and 50,000,000 preferred shares, 20,000 of which are authorized to
be issued at $100 par value per share and the remainder of which are authorized
to be issued at no par value per share. At March 1, 1999, 9,514,889 common
shares were issued and outstanding and no preferred shares were issued and
outstanding.
Common Shares
Holders of our common shares are entitled to one vote per share. There is no
cumulative voting in the election of trust managers. The board may declare
dividends on common shares in its discretion if funds are legally available for
those purposes. On liquidation, common shareholders are entitled to receive pro
rata any of our remaining assets, after we satisfy or provide for the
satisfaction of all liabilities and obligations on our preferred shares, if any.
Common shareholders do not have conversion, redemption or preemptive rights to
subscribe for or purchase any of our capital shares or any of our other
securities.
Preferred Shares
Under our charter, the board is authorized, without shareholder approval, to
issue preferred shares in one or more series, with the designations, powers,
preferences, rights, qualifications, limitations and restrictions as the board
determines. Thus, the board, without shareholder approval, could authorize the
issuance of preferred shares with voting, conversion and other rights that could
adversely affect the voting power and other rights of our common shareholders or
that could make it more difficult for another company to enter into a business
combination with us.
Restrictions on Ownership
In order for us to qualify as a REIT under the Internal Revenue Code, not more
than 50% in value of our outstanding capital shares may be owned, directly or
indirectly, by five or fewer individuals or entities during the last half of a
taxable year. In addition, our capital shares must be beneficially owned by 100
or more persons during at least 335 days of a taxable year of 12 months, or
during a proportionate part of a shorter taxable year.
Because the board believes it is essential for us to continue to qualify as a
REIT, our charter provides, subject to certain exceptions, that no holder may
own, or be deemed to own by virtue of the attribution provisions of the Code,
more than 9.8% of our total outstanding capital shares. Any transfer of shares
will not be valid if it would:
- - create a direct or indirect ownership of shares in excess of 9.8% of our
total outstanding capital shares;
- - result in shares being owned by fewer than 100 persons;
- - result in our being "closely held" within the meaning of Section 856(h) of
the Code; or
- - result in our disqualification as a REIT.
Ownership of over 9.8% of our total outstanding capital shares will
automatically be deemed to be transferred to us as trustee of a trust for the
exclusive benefit of the transferees to whom such shares may ultimately be
transferred without violating the 9.8% ownership limit. While in trust, these
share will not be entitled to vote (except as required by law), and will not be
entitled to participate in dividends or other distributions. These shares would
be treated as if offered to us for sale at a price equal to the lesser of the
price paid for the shares and the market price of the shares on the date we
accept the offer to purchase the shares. We have the right to purchase the
shares for 90 days after the transfer of the shares resulted in a shareholder
owning in excess of 9.8% of our total outstanding shares or our trust managers
determine that a transfer resulting in a shareholder owning in excess of 9.8% of
our outstanding shares has occurred. All certificates representing capital
shares will bear a legend referring to the restrictions described above.
These restrictions on ownership may have the effect of precluding acquisition of
control unless the board and shareholders determine that maintenance of REIT
status is no longer in our best interests.
DESCRIPTION OF SECURITIES WARRANTS
We may issue securities warrants for the purchase of debt securities, preferred
shares or common shares. We may issue securities warrants independently or
together with debt securities, preferred shares or common shares or attached to
or separate from the offered securities. We will issue each series of securities
warrants under a separate warrant agreement between us and a bank or trust
company as warrant agent.
The warrant agent will act solely as our agent in connection with the securities
warrants and will not act for or on behalf of securities warrant holders. This
summary of certain provisions of the securities warrants is not complete. You
should refer to the provisions of the warrant agreement that will be filed with
the SEC as part of the offering of any securities warrants. To obtain a copy of
this document, see "WHERE YOU CAN FIND MORE INFORMATION" on page 2.
DESCRIPTION OF RIGHTS
We may issue rights for the purchase of preferred shares or common shares. We
may issue rights independently or together with preferred shares or common
shares or attached to or separate from the offered securities. We will issue
each series of rights under a separate rights agreement between us and a bank or
trust company as rights agent.
The rights agent will act solely as our agent in connection with the rights and
will not act for or on behalf of rights holders This summary of certain
provision of the rights is not complete . You should refer to the provisions of
the rights agreement that will be filed with the SEC as part of the offering of
any rights. To obtain a copy of this document, see "WHERE YOU CAN FIND MORE
INFORMATION" on page 2.
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The senior debt securities will be issued under a senior indenture to be entered
into between us and an appointed trustee and the subordinated debt securities
will be issued under a subordinated indenture also to be entered into between us
and an appointed trustee. The term "trustee" as used in this prospectus refers
to any bank that we may appoint as trustee under the terms of the applicable
indenture, in its capacity as trustee for the senior securities or the
subordinated securities.
We have summarized certain terms and provisions of the indentures. The summary
is not complete. If we refer to particular provisions of the indentures, the
provisions, including definitions of certain terms, are incorporated by
reference as a part of the summary. We have included references to articles or
section numbers of the applicable indentures so that you can easily locate these
provisions in the indentures. The indentures are filed as exhibits to the
registration statement of which this prospectus is a part, and are incorporated
by reference. You should refer to the indentures for provisions which may be
important to you. The indentures are subject to the Trust Indenture Act of 1939,
as amended. To obtain a copy of the indentures, see "WHERE YOU CAN FIND MORE
INFORMATION" on page 2.
General
The debt securities will be direct, unsecured general obligations. The senior
debt securities will rank equally with all of our other unsecured and
unsubordinated indebtedness. The subordinated debt securities will be
subordinated in right of payment to the prior payment in full of our senior debt
securities. See "Subordinated Debt Securities" on page 7.
The indentures do not limit the amount of debt securities that we can offer.
Each indenture allows us to issue debt securities up to the principal amount
that may be authorized by us. We may issue additional debt securities without
your consent. We may issue debt securities in one or more series. All debt
securities of one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the holders
of the debt securities of such series, for issuances of additional debt
securities of such series. (Section 301)
A prospectus supplement and any supplemental indentures relating to any series
of debt securities being offered will include specific terms relating to the
offering. These terms will include some or all of the following:
- - the title, type and amount of the debt securities;
- - the total principal amount and priority of the debt securities;
- - the percentage of the principal amount at which the debt securities will be
issued and any payments due if the maturity of the debt securities is
accelerated;
- - the dates on which the principal of the debt securities will be payable;
- - the interest rates (which may be fixed or variable) which the debt
securities will bear, or the method for determining rates;
- - the dates from which the interest on the debt securities will accrue and be
payable, or the method of determining those dates, and any record dates for
the payments due;
- - any provisions for redemption, conversion or exchange of the debt
securities, at our option or otherwise, including the periods, prices and
terms of redemption or conversion;
- - any sinking fund or similar provisions, which would obligate us to
repurchase or otherwise redeem the debt securities, along with the periods,
prices and terms of redemption, purchase or repayment;
- - the amount or percentage payable if we accelerate the maturity of the debt
securities, if other than the principal amount;
- - any changes to or additional events of default or covenants set forth in
the indentures;
- - the terms of subordination, if any;
- - any special tax implications of the debt securities, including provisions
for original issue discount securities; and
- - any other terms consistent with the indenture.
The debt securities may be issued in registered, bearer, coupon or global form.
We may authorize and determine the terms of a series of debt securities by
resolution of our board of trust managers or the pricing committee of our board
of trust managers or through a supplemental indenture. Unless otherwise
described in the applicable prospectus supplement, we will issue debt securities
only in denominations of $1,000 and integral multiples of that amount. (Section
301)
Senior Debt Securities
Any additional senior debt securities we issue will rank equally in right of
payment with the senior debt securities offered by this prospectus and the
applicable prospectus supplement. Further, the senior indenture does not
prohibit us from issuing additional debt securities that may rank equally in
right of payment to the senior debt securities.
Any senior debt securities offered pursuant to the senior indenture will be
senior in right of payment to all subordinated debt securities issued under the
subordinated indenture.
Subordinated Debt Securities
The subordinated debt securities will have a junior position to all of our
senior debt. Under the subordinated indenture, payment of the principal,
interest and any premium on the subordinated debt securities will generally be
subordinated and junior in right of payment to the prior payment in full of all
senior debt. The subordinated indenture provides that no payment of principal,
interest and any premium on the subordinated debt securities may be made in the
event:
o of any insolvency, bankruptcy or similar proceeding involving us or our
property; or
o we fail to pay the principal, interest, any premium or any other amounts on
any senior debt when due.
The subordinated indenture will not limit the amount of senior debt that we may
incur. All series of subordinated debt securities as well as other subordinated
debt issued under the subordinated indenture will rank equally with each other
in right of payment.
The subordinated indenture prohibits us from making a payment of principal of or
premium, if any, or interest on, or sinking fund requirements for, the
subordinated debt securities during the continuance of any default in respect of
certain senior debt or any default under any agreement pursuant to which the
senior debt was issued beyond the period of grace, unless and until such default
on the senior debt is cured or waived. (Subordinated Indenture Article Sixteen).
Upon any distribution of our assets in connection with any dissolution, winding
up, liquidation, reorganization, bankruptcy or other similar proceeding relative
to us, our creditors or our property, the holders of all senior debt securities
will first be entitled to receive payment in full of the principal thereof and
premium, if any, and interest due thereon before the holders of the subordinated
debt securities are entitled to receive any payment of the principal of and
premium, if any, or interest on the subordinated debt securities (Subordinated
Indenture Article Sixteen). Because of this subordination, if we become
insolvent, our creditors who are not holders of senior debt or of the
subordinated debt securities may recover less, ratably, than holders of senior
debt but may recover more, ratably, than holders of the subordinated debt
securities.
Global Certificates
Unless the prospectus supplement otherwise provides, we will issue debt
securities as one or more global certificates that will be deposited with The
Depository Trust Company. Unless otherwise specified in the applicable
prospectus supplement, debt securities issued in the form of a global
certificate to be deposited with DTC will be represented by a global certificate
registered in the name of DTC or its nominee. This means that we will not issue
certificates to each holder. Generally, we will issue global securities in the
total principal amount of the debt securities in a series. Debt securities in
the form of a global certificate may not be transferred except as a whole among
DTC, its nominee or a successor to DTC and any nominee of that successor.
We may determine not to use global certificates for any series. In that event,
we will issue debt securities in certificated form.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of securities in certificated form. Those laws and some
conditions on transfer of global securities may impair the ability to transfer
interests in global securities.
Ownership of Global Securities
So long as DTC or its nominee is the registered owner of a global security, that
entity will be the sole holder of the debt securities represented by that
instrument. Both we and the trustee are only required to treat DTC or its
nominee as the legal owner of those securities for all purposes under the
indenture.
Unless otherwise specified in this prospectus or the prospectus supplement, no
actual purchaser of debt securities represented by a global security will be
entitled to receive physical delivery of certificated securities or will be
considered the holder of those securities for any purpose under the indenture.
In addition, no actual purchaser will be able to transfer or exchange global
securities unless otherwise specified in this prospectus or the prospectus
supplement. As a result, each actual purchaser must rely on the procedures of
DTC to exercise any rights of a holder under the indenture. Also, if an actual
purchaser is not a DTC participant, the actual purchaser must rely on the
procedures of the participant through which it owns its interest in a global
security.
The Depository Trust Company
The following is based on information furnished by DTC and applies to the extent
that it is the depositary, unless otherwise provided in the prospectus
supplement.
Registered Owner. The debt securities will be issued as fully registered
securities in the name of Cede & Co. (which is DTC's partnership nominee). The
trustee will deposit the global security with the depositary. The deposit with
the depositary and its registration in the name of Cede & Co. will not change
the nature of the actual purchaser's ownership interest in the debt securities.
DTC's Organization. DTC is a limited purpose trust company organized under the
New York Banking Law, a "banking organization" within the meaning of that law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered under the provisions of Section 17A of the Securities Exchange Act of
1934, as amended.
DTC is owned by a number of its direct participants, the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc. Direct participants include securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations who directly participate in DTC. Other entities may access DTC's
system by clearing transactions through or maintaining a custodial relationship
with direct participants. The rules applicable to DTC and its participants are
on file with the SEC.
DTC's Activities. DTC holds securities that its participants deposit with it.
DTC also facilitates the settlement among participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in participants' accounts. Doing so
eliminates the need for physical movement of securities certificates.
Participants' Records. Except as otherwise provided in this prospectus or a
prospectus supplement, purchases of debt securities must be made by or through a
direct participant, which will receive a credit for the securities on DTC's
records. The purchaser's interest is in turn to be recorded on the participants'
records. Actual purchasers will not receive written confirmations from DTC of
their purchase, but they generally receive confirmations along with periodic
statements of their holdings from the participants through which they entered
into the transaction.
Transfers of interest in the global securities will be made on the books of the
participants on behalf of the actual purchasers. Certificates representing the
interest of the actual purchasers in the securities will not be issued unless
the use of global securities is suspended. DTC has no knowledge of the actual
purchasers of global securities. DTC's records only reflect the identity of the
direct participants who are responsible for keeping account of their holdings on
behalf of their customers.
Notices Among the Depositary, Participants and Actual Owners. Notices and other
communications by DTC, its participants and the actual purchasers will be
governed by arrangements among them, subject to any legal requirements in
effect.
Voting Procedures. Neither DTC nor Cede & Co. will give consents for or vote the
global securities. DTC generally mails an omnibus proxy to us just after the
applicable record date. That proxy assigns Cede & Co.'s voting rights to the
direct participants to whose accounts the securities are credited at that time.
Payments. Principal and interest payments made by us will be delivered to DTC.
DTC's practice is to credit direct participants' accounts on the applicable
payment date unless it has reason to believe that it will not receive payment on
that date. Payments by participants to actual purchasers will be governed by
standing instructions and customary practices, as is the case with securities
held for customers in bearer form or registered in "street name." Those payments
will be the responsibility of that participant, not DTC, the trustee or us,
subject to any legal requirements in effect at that time.
We are responsible for payment of principal, interest and premium, if any, to
the trustee, who is responsible to pay it to DTC. DTC is responsible for
disbursing those payments to direct participants. The participants are
responsible for disbursing payment to the actual purchasers.
Transfer or Exchange of Debt Securities
You may transfer or exchange debt securities (other than global securities)
without a service charge at the corporate trust office of the trustee. You may
also surrender debt securities (other than global securities) for conversion or
registration of transfer without a service charge at the corporate trust office
of the trustee. You must execute a proper form of transfer and pay any taxes or
other governmental charges resulting from that action.
Transfer Agent
If we designate a transfer agent (in addition to the trustee) in a prospectus
supplement, we may at any time rescind this designation or approve a change in
the location through which any such transfer agent acts. We will, however, be
required to maintain a transfer agent in each place of payment for a series of
debt securities. We may at any time designate additional transfer agents for a
series of debt securities.
Covenants
Under the indentures, we will:
- - pay the principal, interest and any premium on the debt securities when
due;
- - maintain a place of payment;
- - deliver a report to the trustee at the end of each fiscal year reviewing
our obligations under the indentures; and
- - deposit sufficient funds with any paying agent on or before the due date
for any principal, interest or any premium.
Events of Default, Notice and Waiver
Events of default under the indentures for any series of debt securities are:
- - failure for 30 days to pay interest on any debt securities of that series;
- - failure to pay principal or premium, if any, of any debt securities of that
series;
- - failure to pay any sinking fund payment when due;
- - failure to perform any other covenants contained in the indentures (other
than a covenant added to the indentures solely for the benefit of a
particular series of debt securities), which continues for 60 days after
written notice as provided in the indenture;
- - default under any other of our debt instruments with an aggregate principal
amount outstanding of at least $10,000,000; or
- - certain events of bankruptcy, insolvency or reorganization, or court
appointment of a receiver, liquidator or trustee.
An event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities issued under an indenture. The trustee may withhold notice to the
holders of debt securities of any default (except in the payment of principal or
interest) if it considers such withholding of notice to be in the best interests
of the holders.
If an event of default for any series of debt securities occurs and continues,
the trustee or the holders of at least 25% of the total principal amount of the
debt securities of the series may declare the entire principal of that series
due and payable immediately. (Section 502) The trustee will not be charged with
knowledge of any event of default other than our failure to make principal,
interest or sinking fund payments unless written notice is received by the
trustee or the trustee has actual notice of the event of default. (Section 602)
If this happens, subject to certain conditions, the holders of a majority of the
aggregate principal amount of the debt securities of that series can void the
declaration. (Section 502)
The indentures limit the right to institute legal proceedings. No holder of any
debt securities will have the right to bring a claim under an indenture unless:
(i) the holder has given written notice of default to the trustee; (ii) the
holders of not less than 25% of the aggregate principal amount of debt
securities of such series shall have made a written request to the trustee to
bring the claim and furnished the trustee such reasonable indemnification as it
may require; (iii) the trustee has not commenced such action within 60 days of
receipt of such notice and indemnification; and (iv) no direction inconsistent
with such request has been given to the trustee by the holders of not less than
a majority of the aggregate principal amount of the debt securities of the
subordination provisions, the holders of debt securities may enforce payment of
the principal of or premium, if any, or interest on their debt securities. No
holder of debt securities of a particular series has the right to prejudice the
rights or obtain priority or preference over the rights of any other holder of
debt securities of such series. (Section 509)
The holders of a majority in aggregate principal amount of any series of debt
securities may direct the time, method and place of conducting any proceeding
for any remedy available to the trustee or exercising any power conferred on the
trustee; provided, however, that the trustee determines that the action is now
lawful, or if the trustee in good faith determines that the action would unduly
prejudice the holders of the debt securities not taking part in the action or
would impose personal liability on the trustee. (Section 512)
Each indenture provides that, in case an event of default in respect of a
particular series of debt securities has occurred, the trustee is to use the
degree of care of a prudent person in the conduct of his own affairs. (Section
602) Subject to such provisions, the trustee is under no obligation to exercise
any of its rights or power under the indenture at the request of any of the
holders of the debt securities of such series unless they have furnished to the
trustee reasonable security or indemnity. (Section 602)
We will be required to furnish to the trustee in an annual statement a notice as
to our fulfillment of all of our obligations under the relevant indenture.
(Section 1007)
Modification of the Indentures
We must obtain the consent of holders of at least a majority in principal amount
of all outstanding debt securities affected by a change to an indenture. The
consent of holders of at least a majority in principal amount of each series of
outstanding debt securities is required to waive compliance by us with certain
covenants in the indenture. We must obtain the consent of each holder affected
by a change to extend the maturity; reduce the principal, redemption premium or
interest rate; change the place of payment, or the coin or currency, for
payment; limit the right to sue for payment; reduce the level of consents needed
to approve a change to an indenture; or modify any of the foregoing provisions
or any of the provisions relating to the waiver of certain past defaults or
certain covenants, except to increase the required level of consents need to
approve a change to an indenture. (Article Nine)
Defeasance
We may defease the debt securities of a series, which means that we would
satisfy our duties under that series before maturity. We may do so by depositing
with the trustee, in trust for the benefit of the holders, sufficient funds to
pay the entire indebtedness on that series, including principal, premium, if
any, and interest. Certain other conditions must be met before we may do so. We
must also deliver an opinion of counsel to the effect that the holders of that
series will have no federal income tax consequences as a result of that deposit.
(Article Fourteen)
Conversion
Debt securities may be convertible into or exchangeable for common shares or
preferred shares. The prospectus supplement will describe the terms of any
conversion rights. To protect our status as a REIT, debt securities are not
convertible if, as a result of such conversion, any person would then be deemed
to own, directly or indirectly, more than 9.8% of our capital shares.
Merger, Consolidation and Sale of Assets
Each indenture generally permits us to consolidate or merge with another
corporation. The indentures also permit us to sell all or substantially all of
our property and assets. If this happens, the remaining or acquiring corporation
shall assume all of our responsibilities and liabilities under the indentures
including the payment of all amounts due on the debt securities and performance
of the covenants in the indentures.
However, we will only consolidate or merge with or into any other corporation or
sell all or substantially all of our assets according to the terms and
conditions of the indentures. The remaining or acquiring corporation will be
substituted for us in the indentures with the same effect as if it had been an
original party to the indenture. Thereafter, the successor corporation may
exercise our rights and powers under any indenture, in our name or in its own
name. Any act or proceeding required or permitted to be done by our board of
trust managers or any of our officers may be done by the board or officers of
the successor corporation. (Article Eight)
FEDERAL INCOME TAX CONSEQUENCES
General
The following summary of material federal income tax consequences that may be
relevant to a holder of common shares is based on current law, is for general
information only and is not intended as tax advice. The following discussion,
which is not exhaustive of all possible tax consequences, does not include a
detailed discussion of any state, local or foreign tax consequences. Nor does it
discuss all of the aspects of federal income taxation that may be relevant to a
prospective shareholder in light of his or her particular circumstances or to
certain types of shareholders (including insurance companies, tax-exempt
entities, financial institutions or broker-dealers, foreign corporations and
persons who are not citizens or residents of the United States and shareholders
holding securities as part of a conversion transaction, a hedging transaction or
as a position in a straddle for tax purposes) who are subject to special
treatment under the federal income tax laws.
The statements in this discussion are based on current provisions of the Code
existing, temporary and currently proposed Treasury Regulations under the Code,
the legislative history of the Code, existing administrative rulings and
practices of the IRS and judicial decisions. No assurance can be given that
legislative, judicial or administrative changes will not affect the accuracy of
any statements in this discussion with respect to transactions entered into or
contemplated prior to the effective date of such changes. Any such change could
apply retroactively to transactions preceding the date of the change. We do not
plan to request any rulings from the IRS concerning our tax treatment and the
statements in this discussion are not binding on the IRS or any court. Thus, we
can provide no assurance that these statements will not be challenged by the IRS
or that such challenge will not be sustained by a court.
This discussion is not intended as a substitute for careful tax planning. Each
prospective purchaser of common stock is advised to consult with his or her own
tax advisor regarding the specific tax consequences to him or her of the
purchase, ownership and disposition of common stock in an entity electing to be
taxed as a REIT, including the federal, state, local, foreign and other tax
consequences of such purchase, ownership, disposition and election, and of
potential changes in applicable tax laws.
We have elected to be treated as a REIT under Sections 856 through 860 of the
Code for federal income tax purposes commencing with our taxable year ended
December 31, 1989. We believe that we have been organized and have operated in a
manner that qualifies for taxation as a REIT under the Code. We also believe
that we will continue to operate in a manner that will preserve our status as a
REIT. We cannot however, assure you that such requirements will be met in the
future.
We have received an opinion from Locke Liddell & Sapp LLP, our legal counsel, to
the effect that we qualified as a REIT under the Code for our taxable year ended
December 31, 1998, we have been organized and our manner of operation has been
in conformity with the requirements for qualification and taxation as a REIT as
of the date of this prospectus and that our proposed manner of operation and
diversity of equity ownership will enable us to continue to satisfy the
requirements for qualification as a REIT in the future. However, you should be
aware that opinions of counsel are not binding on the IRS or on the courts, and,
if the IRS were to challenge these conclusions, no assurance can be given that
these conclusions would be sustained in court. The opinion of Locke Liddell &
Sapp LLP is based on various assumptions as well as on certain representations
made by us as to factual matters, including a factual representation letter
provided by us. The rules governing REITs are highly technical and require
ongoing compliance with a variety of tests that depend, among other things, on
future operating results, asset diversification, distribution levels and
diversity of stock ownership. Locke Liddell & Sapp LLP will not monitor our
compliance with these requirements. While we expect to satisfy these tests, and
will use our best efforts to do so, no assurance can be given that we will
qualify as a REIT for any particular year, or that the applicable law will not
change and adversely affect us and our shareholders. See "Failure to Qualify as
a REIT." The following is a summary of the material federal income tax
considerations affecting us as a REIT and our shareholders. This summary is
qualified in its entirety by the applicable Code provisions, relevant rules and
regulations promulgated under the Code, and administrative and judicial
interpretations of the Code and these rules and regulations.
REIT Qualification
We must be organized as an entity that would, if we do not maintain our REIT
status, be taxable as a regular corporation. We cannot be a financial
institution or an insurance company. We must be managed by one or more trust
managers. Our taxable year must be the calendar year. Our beneficial ownership
must be evidenced by transferable shares. Our capital shares must be held by at
least 100 persons during at least 335 days of a taxable year of 12 months or
during a proportionate part of a taxable year of less than 12 months. Not more
than 50% of the value of the shares of our capital shares may be held, directly
or indirectly, applying the applicable constructive ownership rules of the Code,
by five or fewer individuals at any time during the last half of each of our
taxable years. We must also meet certain other tests, described below, regarding
the nature of our income and assets and the amount of our distributions.
Our outstanding common shares are owned by a sufficient number of investors and
in appropriate proportions to permit us to satisfy these share ownership
requirements. To protect against violations of these share ownership
requirements, our charter provides that no person is permitted to own, applying
constructive ownership tests set forth in the Code, more than 9.8% of our
outstanding common shares, unless the trust managers (including a majority of
the independent trust managers) are provided evidence satisfactory to them in
their sole discretion that our qualification as a REIT will not be jeopardized.
In addition, our charter contains restrictions on transfers of capital shares,
as well as provisions that automatically convert common shares into excess
securities to the extent that the ownership otherwise might jeopardize our REIT
status. These restrictions, however may not ensure that we will, in all cases,
be able to satisfy the share ownership requirements. If we fail to satisfy these
share ownership requirements, except as provided in the next sentence, our
status as a REIT will terminate. However, if we comply with the rules contained
in applicable Treasury Regulations that require us to ascertain the actual
ownership of our shares and we do not know, or would not have known through the
exercise of reasonable diligence, that we failed to meet the 50% requirement
described above, we will be treated as having met this requirement. See the
section below entitled "Failure to Qualify as a REIT."
To monitor our compliance with the share ownership requirements, we are required
to and we do maintain records disclosing the actual ownership of our common
shares. To do so, we will demand written statements each year from the record
holders of certain percentages of shares in which the record holders are to
disclose the actual owners of the shares (i.e., the persons required to include
in gross income the REIT dividends). A list of those persons failing or refusing
to comply with this demand will be maintained as part of our records.
Shareholders who fail or refuse to comply with the demand must submit a
statement with their tax returns disclosing the actual ownership of the shares
and certain other information.
We currently satisfy, and expect to continue to satisfy, each of these
requirements discussed above. We also currently satisfy, and expect to continue
to satisfy, the requirements that are separately described below concerning the
nature and amounts of our income and assets and the levels of required annual
distributions.
Sources of Gross Income. In order to qualify as a REIT for a particular year, we
also must meet two tests governing the sources of our income - a 75% gross
income test and a 95% gross income test. These tests are designed to ensure that
a REIT derives its income principally from passive real estate investments. The
Code allows a REIT to own and operate a number of its properties through
wholly-owned subsidiaries which are "qualified REIT subsidiaries." The Code
provides that a qualified REIT subsidiary is not treated as a separate
corporation, and all of its assets, liabilities and items of income, deduction
and credit are treated as assets, liabilities and items of income of the REIT.
In the case of a REIT which is a partner in a partnership or any other entity
such as a limited liability company that is treated as a partnership for federal
income tax purposes, Treasury Regulations provide that the REIT will be deemed
to own its proportionate share of the assets of the partnership. Also, the REIT
will be deemed to be entitled to its proportionate share of the income of the
partnership. The character of the assets and gross income of the partnership
retains the same character in the hands of the REIT for purposes of Section 856
of the Code, including satisfying the gross income tests and the asset tests.
Thus, our proportionate share of the assets and items of income of any
partnership in which we own an interest are treated as our assets and items of
income for purposes of applying the requirements described in this discussion,
including the income and asset tests described below.
75% Gross Income Test. At least 75% of a REIT's gross income for each taxable
year must be derived from specified classes of income that principally are real
estate related. The permitted categories of principal importance to us are:
- - rents from real property;
- - interest on loans secured by real property;
- - again from the sale of real property or loans secured by real property
(excluding gain from the sale of property held primarily for sale to
customers in the ordinary course of our business, referred to below as
"dealer property");
- - income from the operation and gain from the sale of property acquired in
connection with the foreclosure of a mortgage securing that property
("foreclosure property");
- - distributions on, or gain from the sale of, shares of other qualifying
REITs;
- - abatements and refunds of real property taxes;
- - amounts received as consideration for entering into agreements to make
loans secured by real property or to purchase or lease real property; and
- - "qualified temporary investment income" (described below).
In evaluating our compliance with the 75% gross income test, as well as the 95%
gross income test described below, gross income does not include gross income
from "prohibited transactions." In general, a prohibited transaction is one
involving a sale of dealer property, not including foreclosure property and not
including certain dealer property we have held for at least four years.
We expect that substantially all of our operating gross income will be
considered rent from real property and interest income. Rent from real property
is qualifying income for purposes of the gross income tests only if certain
conditions are satisfied. Rent from real property includes charges for services
customarily rendered to tenants, and rent attributable to personal property
leased together with the real property so long as the personal property rent is
not more than 15% of the total rent received or accrued under the lease for the
taxable year. We do not expect to earn material amounts in these categories.
Rent from real property generally does not include rent based on the income or
profits derived from the property. However, rent based on a percentage of gross
receipt or sales is permitted as rent from real property and we will have leases
where rent is based on a percentage of gross receipt or sales. We generally do
not intend to lease property and receive rentals based on the tenant's income or
profit. Also excluded from "rents from real property" is rent received from a
person or corporation in which we (or any of our 10% or greater owners) directly
or indirectly through the constructive ownership rules contained in Section 318
and Section 856(d)(5) of the Code, own a 10% or greater interest.
A third exclusion from qualifying rent income covers amounts received with
respect to real property if we furnish services to the tenants or manage or
operate the property, other than through an "independent contractor" from whom
we do not derive any income. The obligation to operate through an independent
contractor generally does not apply, however, if the services we provide are
"usually or customarily rendered" in connection with the rental of space for
occupancy only and are not considered rendered primarily for the convenience of
the tenant (applying standards that govern in evaluating whether rent from real
property would be unrelated business taxable income when received by a
tax-exempt owner of the property). Further, if the value of the non-customary
service income with respect to a property, valued at no less than 150% of our
direct cost of performing such services, is 1% or less of the total income
derived from the property, then the provision of such non-customary services
shall not prohibit the rental income (except the non-customary service income)
from qualifying as "rents from real property."
We believe that the only material services generally to be provided to tenants
will be those usually or customarily rendered in connection with the rental of
space for occupancy only. We do not intend to provide services that might be
considered rendered primarily for the convenience of the tenants, such as hotel,
health care or extensive recreational or social services. Consequently, we
believe that substantially all of our rental income will be qualifying income
under the gross income tests, and that our provision of services will not cause
the rental income to fail to be included under that test.
Upon the ultimate sale of our properties, any gains realized also are expected
to constitute qualifying income, as gain from the sale of real property (not
involving a prohibited transaction).
95% Gross Income Test. In addition to earning 75% of our gross income from the
sources listed above, 95% of our gross income for each taxable year must come
either from those sources, or from dividends, interest or gains from the sale or
other disposition of stock or other securities that do not constitute dealer
property. This test permits a REIT to earn a significant portion of its income
from traditional "passive" investment sources that are not necessarily real
estate related. The term "interest" (under both the 75% and 95% tests) does not
include amounts that are based on the income or profits of any person, unless
the computation is based only on a fixed percentage of receipts or sales.
Failing the 75% or 95% Tests; Reasonable Cause. As a result of the 75% and 95%
tests, REITs generally are not permitted to earn more than 5% of their gross
income from active sources, including brokerage commissions or other fees for
services rendered. We may receive certain types of that income. This type of
income will not qualify for the 75% test or 95% test but is not expected to be
significant and that income, together with other nonqualifying income, is
expected to be at all times less than 5% of our annual gross income. While we do
not anticipate that we will earn substantial amounts of nonqualifying income, if
nonqualifying income exceeds 5% of our gross income, we could lose our status as
a REIT. We may establish subsidiaries of which we will hold less than 10% of the
voting stock to hold assets generating non-qualifying income. The gross income
generated by these subsidiaries would not be included in our gross income.
However, dividends we receive from these subsidiaries would be included in our
gross income and qualify for the 95% income test. The ability to establish such
subsidiaries could be adversely impacted by proposals contained in President
Clinton's 2000 Federal Budget Proposal. See the section below entitled "Proposed
Legislation."
If we fail to meet either the 75% or 95% income tests during a taxable year, we
may still qualify as a REIT for that year if (1) we report the source and nature
of each item of our gross income in our federal income tax return for that year,
(2) the inclusion of any incorrect information in our return is not due to fraud
with intent to evade tax, and (3) the failure to meet the tests is due to
reasonable cause and not to willful neglect. It is not possible, however, to
state whether in all circumstances we would be entitled to the benefit of this
relief provision. For example, if we fail to satisfy the gross income tests
because nonqualifying income that we intentionally accrue or receive causes us
to exceed the limits on nonqualifying income, the IRS could conclude that our
failure to satisfy the tests was not due to reasonable cause. If these relief
provisions do not apply to a particular set of circumstances, we will not
qualify as a REIT. As discussed below, even if these relief provisions apply,
and we retain our status as a REIT, a tax would be imposed with respect to our
non-qualifying income. We would be subject to a 100% tax based on the greater of
the amount by which we fail either the 75% or 95% income tests for that year.
See "-- Taxation as a REIT."
Prohibited Transaction Income. Any gain that we realize on the sale of any
property held as inventory or other property held primarily for sale to
customers in the ordinary course of business (including our share of any such
gain realized by any subsidiary partnerships), will be treated as income from a
prohibited transaction that is subject to a 100% penalty tax. This prohibited
transaction income may also adversely affect our ability to satisfy the income
tests for qualification as a REIT. Under existing law, whether property is held
as inventory or primarily for sale to customers in the ordinary course of a
trade or business depends on all the facts and circumstances surrounding the
particular transaction. We intend to hold our and our subsidiary partnerships
intend to hold their properties for investment with a view to long-term
appreciation, to engage in the business of acquiring, developing and owning
properties, and to make occasional sales of the properties as are consistent
with their investment objectives. The IRS may contend, however, that one or more
of these sales is subject to the 100% penalty tax.
Character of Assets Owned. At the close of each calendar quarter of our taxable
year, we also must meet two tests concerning the nature of our investments.
First, at least 75% of the value of our total assets generally must consist of
real estate assets, cash, cash items (including receivables) and government
securities. For this purpose, "real estate assets" include interests in real
property, interests in loans secured by mortgages on real property or by certain
interests in real property, shares in other REITs and certain options, but
excluding mineral, oil or gas royalty interests. The temporary investment of new
capital in debt instruments also qualifies under this 75% asset test, but only
for the one-year period beginning on the date we receive the new capital.
Second, although the balance of our assets generally may be invested without
restriction, we will not be permitted to own (1) securities of any one
non-governmental issuer that represent more than 5% of the value of our total
assets or (2) more than 10% of the outstanding voting securities of any single
issuer. A REIT, however, may own 100% of the stock of a qualified REIT
subsidiary, in which case the assets, liabilities and items of income, deduction
and credit of the subsidiary are treated as those of the REIT. In evaluating a
REIT's assets, if the REIT invests in a partnership, it is deemed to own its
proportionate share of the assets of the partnership.
After initially meeting the asset tests at the close of any quarter, we will not
lose our status as a REIT for failure to satisfy the asset tests at the end of a
later quarter solely by reason of changes in asset values. If we fail to satisfy
the asset tests because we acquire securities or other property during a
quarter, we can cure this failure by disposing of sufficient nonqualifying
assets within 30 days after the close of that quarter. We intend to take such
action within the 30 days after the close of any quarter as may be required to
cure any noncompliance. If we fail to cure noncompliance with the asset tests
within this time period, we would cease to qualify as a REIT.
Annual Distributions to Shareholders. To maintain our REIT status, we generally
must distribute as a dividend to our shareholders in each taxable year at least
95% of our net ordinary income. Capital gain is not required to be distributed.
More precisely, we must distribute an amount equal to (1) 95% of the sum of (a)
our "REIT Taxable Income" before deduction of dividends paid and excluding any
net capital gain and (b) any net income from foreclosure property less the tax
on such income, minus (2) certain limited categories of "excess noncash income,"
including, income attributable to leveled stepped rents, cancellation of
indebtedness and original issue discount income. REIT Taxable Income is defined
to be the taxable income of the REIT, computed as if it were an ordinary
corporation, with certain modifications. For example, the deduction for
dividends paid is allowed, but neither net income from foreclosure property, nor
net income from prohibited transactions, is included. In addition, the REIT may
carry over, but not carry back, a net operating loss for 20 years following the
year in which it was incurred.
A REIT may satisfy the 95% distribution test with dividends paid during the
taxable year and with certain dividends paid after the end of the taxable year.
Dividends paid in January that were declared during the last calendar quarter of
the prior year and were payable to shareholders of record on a date during the
last calendar quarter of that prior year are treated as paid on December 31 of
the prior year. Other dividends declared before the due date of our tax return
for the taxable year, including extensions, also will be treated as paid in the
prior year if they are paid (1) within 12 months of the end of that taxable year
and (2) no later than our next regular distribution payment. Dividends that are
paid after the close of a taxable year that do not qualify under the rule
governing payments made in January (described above) will be taxable to the
shareholders in the year paid, even though we may take them into account for a
prior year. A nondeductible excise tax equal to 4% will be imposed for each
calendar year to the extent that dividends declared and distributed or deemed
distributed before December 31 are less than the sum of (a) 85% of our "ordinary
income" plus (b) 95% of our capital gain net income plus (c) any undistributed
income from prior periods.
To be entitled to a dividends paid deduction, the amount distributed by a REIT
must not be preferential. For example, every shareholder of the class of shares
to which a distribution is made must be treated the same as every other
shareholder of that class, and no class of shares may be treated otherwise than
in accordance with its dividend rights as a class.
We will be taxed at regular corporate rates to the extent that we retain any
portion of our taxable income. For example, if we distribute only the required
95% of our taxable income, we would be taxed on the retained 5%. Under certain
circumstances we may not have sufficient cash or other liquid assets to meet the
distribution requirement. This could arise because of competing demands for our
funds, or due to timing differences between tax reporting and cash receipts and
disbursements (i.e., income may have to be reported before cash is received, or
expenses may have to be paid before a deduction is allowed). Although we do not
anticipate any difficulty in meeting this requirement, no assurance can be given
that necessary funds will be available. In the event these circumstances do
occur, then in order to meet the 95% distribution requirement, we may cause our
operating partnership to arrange for short-term, or possibly long-term,
borrowings to permit the payment of required dividends.
If we fail to meet the 95% distribution requirement because of an adjustment to
our taxable income by the IRS, we may be able to cure the failure retroactively
by paying a "deficiency dividend," as well as applicable interest and penalties,
within a specified period.
Taxation as a REIT
As a REIT, we generally will not be subject to corporate income tax to the
extent we currently distribute our REIT taxable income to our shareholders. This
treatment effectively eliminates the "double taxation" imposed on investments in
most corporations. Double taxation refers to taxation that occurs once at the
corporate level when income is earned and once again at the shareholder level
when such income is distributed. We generally will be taxed only on the portion
of our taxable income that we retain, which will include any undistributed net
capital gain, because we will be entitled to a deduction for dividends paid to
shareholders during the taxable year. A dividends paid deduction is not
available for dividends that are considered preferential within any given class
of shares or as between classes except to the extent that class is entitled to a
preference. We do not anticipate that we will pay any of those preferential
dividends. Because excess shares will represent a separate class of outstanding
shares, the fact that those shares will not be entitled to dividends should not
adversely affect our ability to deduct our dividend payments.
Even as a REIT, we will be subject to tax in certain circumstances as follows:
o we would be subject to tax on any income or gain from foreclosure property
at the highest corporate rate (currently 35%). Foreclosure property is
generally defined as property acquired through foreclosure or after a
default on a loan secured by the property or a lease of the property;
o a confiscatory tax of 100% applies to any net income from prohibited
transactions which are, in general, certain sales or other dispositions of
property held primarily for sale to customers in the ordinary course of
business;
o if we fail to meet either the 75% or 95% source of income tests described
above, but still qualify for REIT status under the reasonable cause
exception to those tests, a 100% tax would be imposed equal to the amount
obtained by multiplying (a) the greater of the amount, if any, by which it
failed either the 75% income test or the 95% income test, times (b) a
fraction intended to reflect our profitability;
o we will be subject to the alternative minimum tax on items of tax
preference, excluding items specifically allocable to our shareholders;
o if we should fail to distribute with respect to each calendar year at least
the sum of (a) 85% of our REIT ordinary income for that year, (b) 95% of
our REIT capital gain net income for that year, and (c) any undistributed
taxable income from prior years, we would be subject to a 4% excise tax on
the excess of the required distribution over the amounts actually
distributed;
o under regulations that are to be promulgated, we also may be taxed at the
highest regular corporate tax rate on any built-in gain attributable to
assets that we acquire in certain tax-free corporate transactions, to the
extent the gain is recognized during the first ten years after we acquire
those assets. Built-in gain is the excess of (a) the fair market value of
the asset over (b) our adjusted basis in the asset, in each case determined
as of the beginning of the ten-year recognition period. The results
described in this paragraph with respect to the recognition of built-in
gain assume that we will make an election pursuant to IRS Notice 88-19 and
that the availability or nature of such election is not modified as
proposed in President Clinton's 2000 Federal Budget Proposal. See the
section below entitled "Proposed Legislation"; and
o we will be taxed at regular corporate rates on any undistributed REIT
taxable income, including undistributed net capital gains.
Failure to Qualify as a REIT
For any taxable year in which we fail to qualify as a REIT and certain relief
provisions do not apply, we would be taxed at regular corporate rates, including
alternative minimum tax rates on all of our taxable income. Distributions to our
shareholders would not be deductible in computing that taxable income, and
distributions would no longer be required to be made. Any corporate level taxes
generally would reduce the amount of cash available for distribution to our
shareholders and, because the shareholders would continue to be taxed on the
distributions they receive, the net after tax yield to the shareholders from
their investment likely would be reduced substantially. As a result, failure to
qualify as a REIT during any taxable year could have a material adverse effect
on an investment in our common shares. If we lose our REIT status, unless
certain relief provisions apply, we would not be eligible to elect REIT status
again until the fifth taxable year which begins after the taxable year during
which our election was terminated. It is not possible to state whether in all
circumstances we would be entitled to this statutory relief. In addition,
President Clinton's 2000 Federal Budget Proposal contains a provision which, if
enacted in its present form, would result in the immediate taxation of all gain
inherent in a C corporation's assets upon an election by the corporation to
become a REIT in taxable years beginning after January 1, 2000. If enacted, this
provision could effectively preclude us from re-electing to be taxed as a REIT
following a loss of REIT status. See the section below entitled "Proposed
Legislation."
Taxation of Taxable U.S. Shareholders
Except as discussed below, distributions generally will be taxable to taxable
U.S. shareholders as ordinary income to the extent of our current or accumulated
earnings and profits. We may generate cash in excess of our net earnings. If we
distribute cash to shareholders in excess of our current and accumulated capital
earnings and profits (other than as a capital gain dividend), the excess cash
will be deemed to be a return of capital to each shareholder to the extent of
the adjusted tax basis of the shareholder's shares. Distributions in excess of
the adjusted tax basis will be treated as gain from the sale or exchange of the
shares. A shareholder who has received a distribution in excess of current and
our accumulated earnings and profits may, upon the sale of the shares, realize a
higher taxable gain or a smaller loss because the basis of the shares as reduced
will be used for purposes of computing the amount of the gain or loss.
Distributions we make, whether characterized as ordinary income or as capital
gains, are not eligible for the dividends received deduction for corporations.
For purposes of determining whether distributions to holders of common shares
are out of current or accumulated earnings and profits, our earnings and profits
will be allocated first to the outstanding preferred shares, if any, and then to
the common shares.
Dividends we declare in October, November, or December of any year and payable
to a shareholder of record on a specified date in any of these months shall be
treated as both paid by us and received by the shareholder on December 31 of
that year, provided we actually pay the dividend on or before January 31 of the
following calendar year. Shareholders may not include in their own income tax
returns any of our net operating losses or capital losses.
Distributions that we properly designate as capital gain dividends will be
taxable to taxable U.S. shareholders as gains from the sale or disposition of a
capital asset to the extent that they do not exceed our actual net capital gain
for the taxable year. Depending on the period of time the tax characteristics of
the assets which produced these gains, and on certain designations, if any,
which we may make, these gains may be taxable to non-corporate U.S. shareholders
at a 20% or 25% rate. U.S. shareholders that are corporations may, however, be
required to treat up to 20% of certain capital gain dividends as ordinary
income.
We may elect to retain, rather than distribute as a capital gain dividend, our
net long-term capital gains. If we make this election, we would pay tax on our
retained net long-term capital gains. In addition, to the extent we designate, a
U.S. shareholder generally would:
o include its proportionate share of our undistributed long-term capital
gains in computing its long-term capital gains in its return for its
taxable year in which the last day of our taxable year falls;
o be deemed to have paid the capital gains tax imposed on us on the
designated amounts included in the U.S. shareholder's long-term capital
gains;
o receive a credit or refund for the amount of tax deemed paid by it;
o increase the adjusted basis of its common stock by the difference between
the amount of includable gains and the tax deemed to have been paid by it;
and
o in the case of a U.S. shareholder that is a corporation, appropriately
adjust its earnings and profits for the retained capital gains in
accordance with Treasury Regulations to be prescribed by the IRS.
Distributions we make and gain arising from the sale or exchange by a U.S.
shareholder of our shares will not be treated as income from a passive activity,
within the meaning of Section 469 of the Code, since income from a passive
activity generally does not include dividends and gain attributable to the
disposition of property that produces dividends. As a result, U.S. shareholders
subject to the passive activity rules will generally be unable to apply any
"passive losses" against this income or gain. Distributions we make, to the
extent they do not constitute a return of capital, generally will be treated as
investment income for purposes of computing the investment interest limitation.
Gain arising from the sale or other disposition of our shares, however, will not
be treated as investment income under certain circumstances.
Generally, gain or loss realized by a shareholder upon the sale of shares will
be reportable as capital gain or loss. If a shareholder receives a long-term
capital gain dividend from us and has held the shares for six months or less,
any loss incurred on the sale or exchange of the shares is treated as a
long-term capital loss to the extent of the corresponding long-term capital gain
dividend received.
In any year in which we fail to qualify as a REIT, the shareholders generally
will continue to be treated in the same fashion described above, except that
none of our dividends will be eligible for treatment as capital gains dividends,
corporate shareholders will qualify for the dividends received deduction and the
shareholders will not be required to report any share of our tax preference
items.
Proposed Legislation
The rules dealing with Federal income taxation are constantly under review by
Congress, the IRS and the Treasury Department. For example, on February 1, 1999,
President Clinton released a proposed budget for fiscal year 2000. The budget
proposal contained a variety of proposed income tax changes, three of which
pertain to REITs. First, under current law, REITs may not own more than 10% of
the voting stock of a regular corporation. Under the proposal, they also would
not be permitted to own more than 10% of the value of all classes of stock of a
corporation unless the corporation qualified as a "qualified business
subsidiary" or a "qualified independent contractor subsidiary." Even if it did
so qualify, the proposal would disallow a deduction for all interest payments on
debt to, or guaranteed by, a REIT that owns stock of such entities. Second, a
new restriction would be imposed on REITs, prohibiting any one person other than
a REIT from owning more than 50% of the total combined voting power of all
voting stock or more than 50% of the total value of shares of all classes of
stock of the REIT. Current law already contains ownership restrictions
applicable to individuals; this new limitation would affect owners other than
individuals. This proposal would be effective for entities electing REIT status
for taxable years beginning on or after the date of first committee action.
Third, a regular C corporation with a fair market value of more than $5,000,000
which elects REIT status or merges into a REIT would be treated as if it had
liquidated and distributed all its assets to its shareholders, and its
shareholders had then contributed the assets to the electing or existing REIT.
This deemed liquidation would cause the regular corporation to be taxed as if it
had sold its assets for fair market value and would cause its shareholders to be
taxed as if they had sold their stock for fair market value. The proposal would
be effective for elections that are first effective for a taxable year beginning
after January 1, 2000, and for mergers into REITs after December 31, 1999.
Changes to the Federal laws and interpretations thereof could adversely affect
the tax consequences of an investment in our common shares. We cannot predict
whether, when, in what forms, or with what effective dates, these or any other
provisions could become effective.
Backup Withholding
We will report to our shareholders and the IRS the amount of dividends paid
during each calendar year and the amount of tax withheld, if any. If a
shareholder is subject to backup withholding, we will be required to deduct and
withhold from any dividends payable to that shareholder a tax of 31%. These
rules may apply (1) when a shareholder fails to supply a correct taxpayer
identification number, (2) when the IRS notifies us that the shareholder is
subject to the rules or has furnished an incorrect taxpayer identification
number, or (3) in the case of corporations or others within certain exempt
categories, when they fail to demonstrate that fact when required. A shareholder
that does not provide a correct taxpayer identification number may also be
subject to penalties imposed by the IRS. Any amount withheld as backup
withholding may be credited against the shareholder's federal income tax
liability. We also may be required to withhold a portion of capital gain
distributions made to shareholders who fail to certify their non-foreign status.
The United States Treasury has recently issued final regulations regarding the
withholding and information reporting rules discussed above. In general, the
final regulations do not alter the substantive withholding and information
reporting requirements but unify current certification procedures and clarify
reliance standards. The final regulations are generally effective for payments
made on or after January 1, 2000, subject to certain transition rules.
Prospective investors should consult their own tax advisors concerning the
adoption of the final regulations and the potential effect on their ownership of
common shares.
Taxation of Tax-Exempt Entities
In general, a tax-exempt entity that is a shareholder will not be subject to tax
on distributions or gain realized on the sale of shares. In Revenue Ruling
66-106, the IRS confirmed that a REIT's distributions to a tax-exempt employees'
pension trust did not constitute unrelated business taxable income, commonly
known as "UBTI." A tax-exempt entity may be subject to UBTI, however, to the
extent that it has financed the acquisition of its shares with "acquisition
indebtedness" within the meaning of the Code. The Revenue Reconciliation Act of
1993 has modified the rules for tax-exempt employees' pension and profit sharing
trusts which qualify under Section 401(a) of the Code and are exempt from tax
under Section 501(a) of the Code ("qualified trusts") for tax years beginning
after December 31, 1993. In determining the number of shareholders a REIT has
for purposes of the "50% test" described above under "--REIT Qualification,"
generally, any shares held by a qualified trust will be treated as held directly
by its beneficiaries in proportion to their interests in the trust and will not
be treated as held by the trust.
A qualified trust owning more than 10% of a REIT may be required to treat a
percentage of dividends from the REIT as UBTI. The percentage is determined by
dividing the REIT's gross income (less direct expenses related thereto) derived
from an unrelated trade or business for the year (determined as if the REIT were
a qualified trust) by the gross income of the REIT for the year in which the
dividends are paid. However, if this percentage is less than 5%, dividends are
not treated as UBTI. These UBTI rules apply only if the REIT qualifies as a REIT
because of the change in the 50% test discussed above and if the trust is
"predominantly held" by qualified trusts. A REIT is predominantly held by
qualified trusts if at least one pension trust owns more than 25% of the value
of the REIT or a group of pension trusts each owning more than 10% of the value
of the REIT collectively own more than 50% of the value of the REIT. We do not
currently meet either of these requirements.
For social clubs, voluntary employee benefit associations, supplemental
unemployment benefit trusts and qualified group legal services plans exempt from
federal income taxation under Sections 501(c)(7), (c)(9), (c)(17) and (c)(20) of
the Code, respectively, income from an investment in our capital stock will
constitute UBTI unless the organization is able to deduct an amount properly set
aside or placed in reserve for certain purposes so as to offset the UBTI
generated by the investment in our capital stock. These prospective investors
should consult their own tax advisors concerning the "set aside" and reserve
requirements.
Taxation of Foreign Investors
The rules governing federal income taxation of nonresident alien individuals,
foreign corporations, foreign partnerships and other foreign shareholders are
complex and no attempt will be made herein to provide more than a summary of
such rules. Prospective non-U.S. shareholders should consult with their own tax
advisors to determine the impact of federal, state and local income tax laws
with regard to an investment in common shares, including any reporting
requirements, as well as the tax treatment of such an investment under the laws
of their home country.
Dividends that are not attributable to gain from any sales or exchanges we make
of United States real property interests and which we do not designate as
capital gain dividends will be treated as dividends of ordinary income to the
extent that they are made out of our current or accumulated earnings and
profits. Those dividends ordinarily will be subject to a withholding tax equal
to 30% of the gross amount of the dividend unless an applicable tax treaty
reduces or eliminates that tax. However, if income from the investment in the
common shares is treated as effectively connected with the non-U.S.
shareholder's conduct of a United States trade or business, the non-U.S.
shareholder generally will be subject to a tax at graduated rates, in the same
manner as U.S. shareholders are taxed with respect to those dividends, and may
also be subject to the 30% branch profits tax in the case of a shareholder that
is a foreign corporation. For withholding tax purposes, we are currently
required to treat all distributions as if made out of our current and
accumulated earnings and profits and thus we intend to withhold at the rate of
30%, or a reduced treaty rate if applicable, on the amount of any distribution
(other than distributions designated as capital gain dividends) made to a
non-U.S. shareholder unless (1) the non-U.S. shareholder files on IRS Form 1001
claiming that a lower treaty rate applies or (2) the non-U.S. shareholder files
an IRS Form 4224 claiming that the dividend is effectively connected income.
Under the final regulations, generally effective for distributions on or after
January 1, 2000, we would not be required to withhold at the 30% rate on
distributions we reasonably estimate to be in excess of our current and
accumulated earnings and profits. Dividends in excess of our current and
accumulated earnings and profits will not be taxable to a shareholder to the
extent that they do not exceed the adjusted basis of the shareholder's shares,
but rather will reduce the adjusted basis of those shares. To the extent that
those dividends exceed the adjusted basis of a non-U.S. shareholder's shares,
they will give rise to tax liability if the non-U.S. shareholder would otherwise
be subject to tax on any gain from the sale or disposition of his shares, as
described below. If it cannot be determined at the time a dividend is paid
whether or not a dividend will be in excess of current and accumulated earnings
and profits, the dividend will be subject to such withholding. We do not intend
to make quarterly estimates of that portion of dividends that are in excess of
earnings and profits, and, as a result, all dividends will be subject to such
withholding. However, the non-U.S. shareholder may seek a refund of those
amounts from the IRS.
For any year in which we qualify as a REIT, distributions that are attributable
to gain from our sales or exchanges of United States real property interests
will be taxed to a non-U.S. shareholder under the provisions of the Foreign
Investment in Real Property Tax Act of 1980, commonly known as "FIRPTA." Under
FIRPTA, those dividends are taxed to a non-U.S. shareholder as if the gain were
effectively connected with a United States business. Non-U.S. shareholders would
thus be taxed at the normal capital gain rates applicable to U.S. shareholders
subject to applicable alternative minimum tax and a special alternative minimum
tax in the case of nonresident alien individuals. Also, dividends subject to
FIRPTA may be subject to a 30% branch profits tax in the hands of a corporate
non-U.S. shareholder not entitled to treaty exemption. We are required by the
Code and applicable Treasury Regulations to withhold 35% of any dividend that
could be designated as a capital gain dividend. This amount is creditable
against the non-U.S. shareholder's FIRPTA tax liability.
Gain recognized by a non-U.S. shareholder upon a sale of shares generally will
not be taxed under FIRPTA if we are a "domestically controlled REIT," defined
generally as a REIT in which at all times during a specified testing period less
than 50% in value of the shares was held directly or indirectly by foreign
persons. It is currently anticipated that we will be a "domestically controlled
REIT," and therefore the sale of shares will not be subject to taxation under
FIRPTA. Because the common shares will be publicly traded, however, no assurance
can be given that we will remain a "domestically controlled REIT." However, gain
not subject to FIRPTA will be taxable to a non-U.S. shareholder if (1)
investment in the common shares is effectively connected with the non-U.S.
shareholder's United States trade or business, in which case the non-U.S.
shareholder will be subject to the same treatment as U.S. shareholders with
respect to that gain, and may also be subject to the 30% branch profits tax in
the case of a corporate non-U.S. shareholder, or (2) the non-U.S. shareholder is
a nonresident alien individual who was present in the United States for 183 days
or more during the taxable year and has a "tax home" in the United States, in
which case the nonresident alien individual will be subject to a 30% withholding
tax on the individual's capital gains. If we were not a domestically controlled
REIT, whether or not a non-U.S. shareholder's sale of shares would be subject to
tax under FIRPTA would depend on whether or not the common shares were regularly
traded on an established securities market (such as the NYSE) and on the size of
selling non-U.S. shareholder's interest in our capital shares. If the gain on
the sale of shares were to be subject to taxation under FIRPTA, the non-U.S.
shareholder will be subject to the same treatment as U.S. shareholders with
respect to that gain (subject to applicable alternative minimum tax and a
special alternative minimum tax in the case of nonresident alien individuals)
and the purchaser of our common shares may be required to withhold 10% of the
gross purchase price.
State and Local Taxes
We, and our shareholders, may be subject to state or local taxation in various
state or local jurisdictions, including those in which it or they transact
business or reside. Consequently, prospective shareholders should consult their
own tax advisors regarding the effect of state and local tax laws on an
investment in our capital shares.
PLAN OF DISTRIBUTION
We may offer securities directly or through underwriters, dealers or agents. The
prospectus supplement will identify those underwriters, dealers or agents and
will describe the plan of distribution, including commissions to be paid. If we
do not name a firm in the prospectus supplement, the firm may not directly or
indirectly participate in any underwriting of those securities, although it may
participate in the distribution of securities under circumstances entitling it
to a dealer's allowance or agent's commission. Any underwriting agreement will
entitle the underwriters to indemnification against certain civil liabilities
under the federal securities laws and other laws. The nderwriters' obligations
to purchase securities will be subject to certain conditions and generally will
require them to purchase all of the securities if any are purchased. Unless
otherwise noted in the prospectus supplement, the securities will be offered by
the underwriters, if any, when, as and if issued by us, delivered to and
accepted by the underwriters and subject to their right to reject orders in
whole or in part.
We may sell securities to dealers, as principals. Those dealers then may resell
the securities to the public at varying prices set by those dealers from time to
time. We may also offer securities through agents. Agents generally act on a
"best efforts" basis during their appointment, meaning that they are not
obligated to purchase securities.
Dealers and agents may be entitled to indemnification as underwriters by us
against certain liabilities under the Federal securities laws and other laws. We
or the underwriters or the agent may solicit offers by institutions approved by
us to purchase securities under contracts providing for further payment.
Permitted institutions include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others. Certain conditions apply to those purchases. An
underwriter may engage in over-allotment, stabilizing transactions, short
covering transactions and penalty bids in accordance with Regulation M under the
Securities Exchange Act of 1934. Over-allotment involves sales in excess of the
offering size, which creates a short position. Stabilizing transactions permit
bidders to purchase the underlying security so long as the stabilizing bids do
not exceed a specified maximum. Short covering transactions involve purchases of
the securities in the open market after the distribution is completed to cover
short positions. Penalty bids permit the underwriters to reclaim a selling
concession from a dealer when the securities originally sold by the dealer are
purchased in a covering transaction to cover short positions. Those activities
may cause the price of the securities to be higher than it would otherwise be.
The underwriters may engage in any such activities on any exchange or other
market in which the securities may be traded. If commenced, the underwriters may
discontinue those activities at any time.
The prospectus supplement or pricing supplement, as applicable, will set forth
the anticipated delivery date of the securities being sold at that time.
LEGAL MATTERS
Unless otherwise noted in a supplement, Locke Liddell & Sapp LLP, Dallas, Texas,
will pass on the legality of the securities offered through this prospectus.
Counsel for any underwriters or agents will be noted in the applicable
prospectus supplement.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated financial
statements and schedule included in our Annual Report on Form 10-K for the year
ended December 31,1998 and the Combined Historical Summary of Gross Income and
Direct Operating Expenses of the Dallas Portfolio included in our Current Report
on Form 8-K/A, filed
March 16, 1999, as set forth in their reports, which are incorporated by
reference in this prospectus and elsewhere in the registration statement. These
financial statements and schedule are incorporated by reference in reliance on
Ernst & Young LLP's reports, given on their authority as experts in accounting
and auditing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection
with the offering contemplated by this Registration Statement:
<TABLE>
<CAPTION>
<S>
<C> <C>
SEC Registration Fee.....................................................$27,800
Blue Sky Fees and Expenses.................................................7,500
Printing and Engraving Costs..............................................15,000
Accounting Fees and Expenses...............................................5,000
Legal Fees and Expenses...................................................35,000
Trustee and Registrar Fees................................................10,000
Rating Agency Fees........................................................50,000
Miscellaneous..............................................................4,700
Total..........................................................$155,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (B) of Section 9.20 of the Texas Real Estate Investment
Trust Act, as amended (the "Act"), empowers a real estate investment trust to
indemnify any person who was, is, or is threatened to be made a named defendant
or respondent in any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, arbitrative, or
investigative, any appeal in such an action, suit, or proceeding, or any inquiry
or investigation that can lead to such an action, suit or proceeding because the
person is or was a trust manager, officer, employee or agent of the real estate
investment trust or is or was serving at the request of the real estate
investment trust as a trust manager, director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another real
estate investment trust, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise against
expenses (including court costs and attorney fees), judgments, penalties, fines
and settlements if he conducted himself in good faith and reasonably believed
his conduct was in or not opposed to the best interests of the real estate
investment trust and, in the case of any criminal proceeding, had no reasonable
cause to believe that his conduct was unlawful.
The Act further provides that, except to the extent otherwise permitted
by the Act, a person may not be indemnified in respect of a proceeding in which
the person is found liable on the basis that personal benefit was improperly
received by him or in which the person is found liable to the real estate
investment trust. Indemnification pursuant to Subsection (B) of Section 9.20 of
the Act is limited to reasonable expenses actually incurred and may not be made
in respect of any proceeding in which the person has been found liable for
willful or intentional misconduct in the performance of his duty to the real
estate investment trust.
Subsection (C) of Section 15.10 of the Act provides that a trust
manager shall not be liable for any claims or damages that may result from his
acts in the discharge of any duty imposed or power conferred upon him by the
real estate investment trust, if, in the exercise of ordinary care, he acted in
good faith and in reliance upon information, opinions, reports, or statements,
including financial statements and other financial data, concerning the real
estate investment trust, that were prepared or presented by officers or
employees of the real estate investment trust, legal counsel, public
accountants, investment bankers, or certain other professionals, or a committee
of trust manager of which the trust manager is not a member. In addition, no
trust manager shall be liable to the real estate investment trust for any act,
omission, loss, damage, or expense arising from the performance of his duty to a
real estate investment trust, save only for his own willful misfeasance, willful
malfeasance or gross negligence.
Article Sixteen of our First Amended and Restated Declaration of Trust
provides that we shall indemnify officers and trust managers, as set forth
below:
(a) We shall indemnify every person who is or was serving as
our trust manager or officer and any person who is or was serving at
our request as a trust manager, officer, partner, venturer, proprietor,
trustee, employee, agent or similar functionary of another real estate
investment trust, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise with respect to all
costs and expenses incurred by such person as a result of such person
being made or threatened to be made a defendant or respondent in a
proceeding by reason of his holding or having held a position named
above in this paragraph.
(b) If the indemnification provided in paragraph (a) is either
(i) insufficient to cover all costs and expenses incurred by any person
named in such paragraph as a result of such person being made or
threatened to be made a defendant or respondent in a proceeding by
reason of his holding or having held a position named in such paragraph
or (ii) not permitted by Texas law, we shall indemnify, to the fullest
extent that indemnification is permitted by Texas law, every person who
is or was serving as our trust manager or officer and any person who is
or was serving at our request as a trust manager, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary
of another real estate investment trust, partnership, joint venture,
sole proprietorship, trust, employee benefit plan or other enterprise
with respect to all costs and expenses incurred by such person as a
result of such person being made or threatened to be made a defendant
or respondent in a proceeding by reason of his holding or having held a
position named above in this paragraph.
ITEM 16. EXHIBITS
*1.1 Form of Underwriting Agreement for Debt Securities.
*1.2 Form of Underwriting Agreement for Equity Securities.
*1.3 Form of Distribution Agreement for Medium-Term Notes.
*4.1 First Amended and Restated Declaration of Trust (incorporated by
reference to Exhibit 3.1 to our Registration Statement on Form
S-11, dated March 5, 1998 (File No. 333-29475)).
*4.2 First Amended and Restated Bylaws (incorporated by reference to
Exhibit 3.2 to our registration statement on Form S-11, dated
March 5, 1998 (File No. 333-29475)).
*4.3 Specimen Certificate for Common Shares (incorporated by reference
to Exhibit 4.2 of our registration statement on Form S-11, dated
March 5, 1998 (File No. 333-29475)).
4.4 Form of Indenture for Senior Debt Securities.
4.5 Form of Indenture for Subordinated Debt Securities.
*4.6 Form of Senior Debt Security.
*4.7 Form of Subordinated Debt Security.
*4.8 Form of Fixed Rate Senior Medium-Term Note.
*4.9 Form of Fixed Rate Subordinated Medium-Term Note.
*4.10 Form of Floating Rate Senior Medium-Term Note.
*4.11 Form of Floating Rate Subordinated Medium-Term Note.
*4.12 Form of Statement of Designation of Preferred Shares.
*4.13 Form of Preferred Share Certificate.
*4.14 Form of Securities Warrant Agreement.
*4.15 Form of Rights Agreement.
5.1 Opinion of Locke Liddell & Sapp LLP as to the legality of the
securities being registered.
8.1 Form of Opinion of Locke Liddell & Sapp LLP as to certain tax
matters.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Locke Liddell & Sapp LLP (included in Exhibit 5.1
hereto).
23.3 Consent of Locke Liddell & Sapp LLP (included in Exhibit 8.1
hereto).
24.1 Power of Attorney (included on signature page).
*25.1 Statement of Eligibility of Trustee for Senior Debt Securities
on Form T-1.
*25.2 Statement of Eligibility of Trustee for Subordinated Debt
Securities on Form T-1.
- -------------------
* To be filed by amendment or incorporated by reference in connection with
the offering of securities.
<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes as follows:
(a)(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the undersigned
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) The undersigned Registrant hereby further undertakes to supplement
the applicable prospectus supplement, after the expiration of the subscription
period, to set forth the results of the subscription offer, the transactions by
the underwriters during the subscription period, the amount of unsubscribed
securities to be purchased by the underwriters, and the terms of any subsequent
reoffering thereof. If any public offering by the underwriters is to be made on
terms differing from those set forth on the cover page of the prospectus, a
post-effective amendment will be filed to set forth the terms of such offering.
(d) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described in Item 15 of this
Registration Statement or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than in payment by the registrant of expenses incurred or
paid by a trust manager, director, officer or controlling person in the
successful defense of any action, suit or proceeding) is asserted against the
registrant by such trust manager, director, officer or controlling person in
connection with the securities being registered hereby, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 5th day of April,
1999.
UNITED INVESTORS REALTY TRUST
By: /s/ Lewis H. Sandler
-------------------------------------------
Lewis H. Sandler, Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Lewis H. Sandler and Steve Hamner,
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him, and on his behalf and in his
name, place and stead, in any and all capacities, to sign, execute and file this
Registration Statement under the Securities Act of 1933, as amended, and any or
all amendments (including, without limitation, post-effective amendments), with
all exhibits and any and all documents required to be filed with respect
thereto, with the Securities and Exchange Commission or any regulatory
authority, granting unto such attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same, as fully to all intents and purposes as he himself might or
could do if personally present, hereby ratifying and confirming all that such
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S>
Signature Title Date
<C> <C> <C>
/s/ Robert W. Scharar
- -----------------------
Robert W. Scharar Chairman of the Board and Trust Manager April 5, 1999
/s/ Lewis H. Sandler
- ----------------------- President, Chief Executive Officer and
Lewis H. Sandler Trust Manager April 5, 1999
(principal executive officer)
/s/ R. Steven Hamner
- ----------------------- Vice President and Chief Financial Officer
R. Steven Hamner (principal financial and accounting officer) April 5, 1999
/s/ William Brooks
- -----------------------
William C. Brooks Trust Manager April 5, 1999
/s/ Jerry M. Coleman
- -----------------------
Jerry M. Coleman Trust Manager April 5, 1999
/s/ Josef C. Hermans
- -----------------------
Josef C. Hermans Trust Manager April 5, 1999
/s/ Ira T. Wender
- -----------------------
Ira T. Wender Trust Manager April 5, 1999
/s/ Deborah G. Moffett
- -----------------------
Deborah G. Moffett Trust Manager April 5, 1999
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number
- -------
*1.1 Form of Underwriting Agreement for Debt Securities.
*1.2 Form of Underwriting Agreement for Equity Securities.
*1.3 Form of Distribution Agreement for Medium-Term Notes.
*4.1 First Amended and Restated Declaration of Trust (incorporated by
reference to Exhibit 3.1 to our Registration Statement on Form
S-11, dated March 5, 1998 (File No. 333-29475)).
*4.2 First Amended and Restated Bylaws (incorporated by reference to
Exhibit 3.2 to our registration statement on Form S-11, dated
March 5, 1998 (File No. 333-29475)).
*4.3 Specimen Certificate for Common Shares (incorporated by reference
to Exhibit 4.2 of our registration statement on Form S-11, dated
March 5, 1998 (File No. 333-29475)).
4.4 Form of Indenture for Senior Debt Securities.
4.5 Form of Indenture for Subordinated Debt Securities.
*4.6 Form of Senior Debt Security.
*4.7 Form of Subordinated Debt Security.
*4.8 Form of Fixed Rate Senior Medium-Term Note.
*4.9 Form of Fixed Rate Subordinated Medium-Term Note.
*4.10 Form of Floating Rate Senior Medium-Term Note.
*4.11 Form of Floating Rate Subordinated Medium-Term Note.
*4.12 Form of Statement of Designation of Preferred Shares.
4.13 Form of Preferred Share Certificate.
*4.14 Form of Securities Warrant Agreement.
*4.15 Form of Rights Agreement.
5.1 Opinion of Locke Liddell & Sapp LLP as to the legality of the
securities being registered.
8.1 Form of Opinion of Locke Liddell & Sapp LLP as to certain tax
matters
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Locke Liddell & Sapp LLP (included in Exhibit 5.1
hereto).
23.3 Consent of Locke Liddell & Sapp LLP (included in Exhibit 8.1
hereto)
24.1 Power of Attorney (included on signature page).
*25.1 Statement of Eligibility of Trustee for Senior Debt Securities
on Form T-1.
*25.2 Statement of Eligibility of Trustee for Subordinated Debt
Securities on Form T-1.
- --------
* To be filed by amendment or incorporated by reference in connection with
the offering of securities.
<PAGE>
<PAGE>
Exhibit 4.4
UNITED INVESTORS REALTY TRUST
TO
-----------------------------
Trustee
Indenture
Dated as _________, 1999
Senior Debt Securities
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S>
Page
<C> <C>
PARTIES 1
RECITALS 1
</TABLE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<TABLE>
<CAPTION>
<S>
<C> <C> <C> <C>
SECTION 101. Definitions 1
Acquired Debt 2
Act 2
Additional Amounts 2
Affiliate 2
Annual Service Charge 2
Authenticating Agent 2
Authorized Newspaper 2
Bankruptcy Law 3
Bearer Security 3
Board of Trust Managers 3
Board Resolution 3
Business Day 3
Capital Shares 3
CEDEL 3
Commission 3
Common Depositary 3
Common Shares 3
Company 4
Company Request and Company Order 4
Consolidated Income Available for Debt Service 4
Conversion Event 4
Corporate Trust Office 4
Corporation 4
Coupon 4
Custodian 4
Debt 4
Defaulted Interest 5
Disqualified Stock 5
Dollar or $ 5
ECU 5
Euroclear 5
European Communities 5
European Monetary System 5
Event of Default 5
Exchange Date 5
Foreign Currency 6
Funds from Operations 6
GAAP 6
Government Obligations 6
Holder 6
Indenture 6
Indexed Security 7
Interest 7
Interest Payment Date 7
Maturity 7
Officers' Certificate 7
Opinion of Counsel 7
Original Issue Discount Security 7
Outstanding 7
Paying Agent 9
Person 9
Place of Payment 9
Predecessor Security 9
Preferred Shares 9
Redemption Date 9
Redemption Price 9
Registered Security 9
Regular Record Date 9
Repayment Date 9
Repayment Price 10
Representative 10
Responsible Officer 10
Security 10
Security Register and Security Registrar 10
Significant Subsidiary 10
Special Record Date 10
Stated Maturity 10
Subsidiary 11
Total Assets 11
Trust Indenture Act or TIA 11
Trust Managers 11
Trustee 11
Undepreciated Real Estate Assets 11
Unencumbered Total Asset Value 11
United States 11
United States person 11
Yield to Maturity 11
SECTION 102. Compliance Certificates and Opinions 12
SECTION 103. Form of Documents Delivered to Trustee 12
SECTION 104. Acts of Holders 13
SECTION 105. Notices, etc., to Trustee and Company 15
SECTION 106. Notice to Holders; Waiver 15
SECTION 107. Effect of Headings and Table of
Contents 16
SECTION 108. Successors and Assigns 16
SECTION 109. Separability Clause 16
SECTION 110. Benefits of Indenture 16
SECTION 111. Governing Law 16
SECTION 112. Legal Holidays 16
SECTION 113. Immunity of Shareholders, Trust
Managers, Officers and Agents of
the Company 17
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities 17
SECTION 202. Form of Trustee's Certificate of
Authentication 18
SECTION 203. Securities Issuable in Global Form 18
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series 19
SECTION 302. Denominations 23
SECTION 303. Execution, Authentication, Delivery
and Dating 23
SECTION 304. Temporary Securities 25
SECTION 305. Registration, Registration of Transfer
and Exchange 27
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities 31
SECTION 307. Payment of Interest; Interest
Rights Preserved 32
SECTION 308. Persons Deemed Owners 34
SECTION 309. Cancellation 34
SECTION 310. Computation of Interest 35
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of
Indenture 35
SECTION 402. Application of Trust Funds 37
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default 37
SECTION 502. Acceleration of Maturity; Rescission
and Annulment 38
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee 40
SECTION 504. Trustee May File Proofs of Claim 40
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons 41
SECTION 506. Application of Money Collected 41
SECTION 507. Limitation on Suits 42
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium, if any,
Interest and Additional Amounts 42
SECTION 509. Restoration of Rights and Remedies 43
SECTION 510. Rights and Remedies Cumulative 43
SECTION 511. Delay or Omission Not Waiver 43
SECTION 512. Control by Holders of Securities 43
SECTION 513. Waiver of Past Defaults 44
SECTION 514. Waiver of Usury, Stay or
Extension Laws 44
SECTION 515. Undertaking for Costs 44
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults 45
SECTION 602. Certain Rights of Trustee 46
SECTION 603. Not Responsible for Recitals or
Issuance of Securities 47
SECTION 604. May Hold Securities 47
SECTION 605. Money Held in Trust 47
SECTION 606. Compensation and Reimbursement 47
SECTION 607. Corporate Trustee Required;
Eligibility; Conflicting Interests 48
SECTION 608. Resignation and Removal;
Appointment of Successor 48
SECTION 609. Acceptance of Appointment by Successor 50
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business 51
SECTION 611. Appointment of Authenticating Agent 51
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of
Holders 53
SECTION 702. Reports by Trustee 53
SECTION 703. Reports by Company 53
SECTION 704. Company to Furnish Trustee Names and
Addresses of Holders 54
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company
and Sales, Leases and Conveyances
Permitted Subject to Certain
Conditions 54
SECTION 802. Rights and Duties of Successor
Corporation 54
SECTION 803. Officers' Certificate and Opinion of
Counsel 55
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without
Consent of Holders 55
SECTION 902. Supplemental Indentures with Consent
of Holders 57
SECTION 903. Execution of Supplemental Indentures 58
SECTION 904. Effect of Supplemental Indentures 58
SECTION 905. Conformity with Trust Indenture Act 58
SECTION 906. Reference in Securities to
Supplemental Indentures 58
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any,
Interest and Additional Amounts 58
SECTION 1002. Maintenance of Office or Agency 59
SECTION 1003. Money for Securities Payments to Be
Held in Trust 60
SECTION 1004. Existence 62
SECTION 1005. Payment of Taxes and Other Claims 62
SECTION 1006. Provision of Financial Information 62
SECTION 1007. Statement as to Compliance 63
SECTION 1008. Additional Amounts 63
SECTION 1009. Waiver of Certain Covenants 64
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article 64
SECTION 1102. Election to Redeem; Notice to Trustee 64
SECTION 1103. Selection by Trustee of Securities to
Be Redeemed 64
SECTION 1104. Notice of Redemption 65
SECTION 1105. Deposit of Redemption Price 66
SECTION 1106. Securities Payable on Redemption Date 66
SECTION 1107. Securities Redeemed in Part 67
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article 68
SECTION 1202. Satisfaction of Sinking Fund
Payments with Securities 68
SECTION 1203. Redemption of Securities for Sinking
Fund 68
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article 69
SECTION 1302. Repayment of Securities 69
SECTION 1303. Exercise of Option 69
SECTION 1304. When Securities Presented for
Repayment Become Due and Payable 70
SECTION 1305. Securities Repaid in Part 71
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article: Company's
Option to Effect Defeasance or
Covenant Defeasance 71
SECTION 1402. Defeasance and Discharge 71
SECTION 1403. Covenant Defeasance 72
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance 72
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions 74
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be
Called 75
SECTION 1502. Call, Notice and Place of Meetings 75
SECTION 1503. Persons Entitled to Vote at Meetings 76
SECTION 1504. Quorum; Action 76
SECTION 1505. Determination of Voting Rights;
Conduct and Adjournment of Meetings 77
SECTION 1506. Counting Votes and Recording Action
of Meetings 78
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
</TABLE>
<PAGE>
UNITED INVESTORS REALTY TRUST
Reconciliation and tie between Trust Indenture Act of 1939 (the
"TIA") and Indenture dated as of ____________ ,1999
<TABLE>
<CAPTION>
<S>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<C> <C>
Section 310(a)(1) 607
(a)(2) 607
(b) 607, 608
Section 312(a) 704
Section 312(c) 701
Section 313(a) 702
(c) 702
Section 314(a) 703
(a)(4) 1010
(c)(1) 102
(c)(2) 102
(e) 102
Section 315(b) 601
Section 316(a)(last sentence) 101 ("Outstanding")
(a)(1)(A) 512
(a)(1)(B) 513
(b) 508
Section 317(a)(1) 503
(a)(2) 504
Section 318(a) 111
(c) 111
</TABLE>
- ---------------
NOTE:This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Attention should also be directed to Section 318(c) of the TIA, which
provides that the provisions of Sections 310 to and including 317 of the TIA are
a part of and govern every qualified indenture, whether or not physically
contained therein.
<PAGE>
INDENTURE, dated as of ____________, 1999, between UNITED INVESTORS REALTY
TRUST, a real estate investment trust organized under the laws of the State of
Texas (hereinafter called the "Company"), having its principal office at 5847
San Felipe, Suite 850, Houston, Texas 77057 and ________ , as Trustee hereunder
(hereinafter called the "Trustee"), having its principal office at .
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes senior debt securities (the "Securities") evidencing its unsecured and
unsubordinated indebtedness, and has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of the
Securities, unlimited as to principal amount, to bear interest at the rates or
formulas, to mature at such times and to have such other provisions as shall be
fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended ("TIA"), that are deemed to be incorporated into this Indenture
and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the holders thereof ("Holders"), it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein, and the terms "cash transaction" and "self-liquidating
paper," as used in TIA Section 311, shall have the meanings assigned
to them in the rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP (as defined herein);
and
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Acquired Debt" means Debt (as defined herein) of a Person (as
defined herein) (i) existing at the time such Person becomes a
subsidiary or (ii) assumed in connection with the acquisition of
assets from such Person, in each case, other than Debt incurred in
connection with, or in contemplation of, such Person becoming a
Subsidiary (as defined herein) or such acquisition. Acquired Debt
shall be deemed to be incurred on the date of the related acquisition
of assets from any Person or the date the acquired Person becomes a
Subsidiary.
"Act," when used with respect to any Holder (as defined herein),
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 (as
defined herein), under circumstances specified therein, to be paid by
the Company in respect of certain taxes imposed on certain Holders and
which are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes
of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Annual Service Charge" as of any date means the maximum amount
which is payable in any period for interest on, and original issue
discount of, Debt of the Company and its Subsidiaries and the amount
of dividends which are payable in respect of any Disqualified Stock
(as defined herein).
"Authenticating Agent" means any authenticating agent appointed
by the Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication,
customarily published on each Business Day (as defined herein),
whether or not published on Saturdays, Sundays or holidays, and of
general circulation in each place in connection with which the term is
used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in
different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to
Section 201 which is payable to bearer.
"Board of Trust Managers" means the board of Trust Managers (as
defined herein) of the Company, the executive committee or any
committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Trust Managers and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
"Business Day," when used with respect to any Place of Payment
(as defined herein) or any other particular location referred to in
this Indenture or in the Securities, means, unless otherwise specified
with respect to any Securities pursuant to Section 301, any day, other
than a Saturday or Sunday, that is neither a legal holiday nor a day
on which banking institutions in that Place of Payment or particular
location are authorized or required by law, regulation or executive
order to close.
"Capital Shares" means, with respect to any Person, any capital
shares (including preferred shares), interests, participations or
other ownership interests (however designated) of such Person and any
rights (other than debt securities convertible into or exchangeable
for capital shares), warrants or options to purchase any thereof.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A.,
or its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange
Act of 1934, as amended, or, if at any time after execution of this
instrument such Commission is not existing and performing the duties
now assigned to it under the TIA, then the body performing such duties
on such date.
"Common Depositary" has the meaning specified in Section 304(b).
"Common Shares" means, with respect to any Person, Capital Shares
issued by such Person other than Preferred Shares.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by one
Trust Manager and the Company's Chairman of the Board, its Chief
Executive Officer, its President or a Vice President, its Treasurer,
an Assistant Treasurer, its Controller or an Assistant Controller, its
Secretary, or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Income Available for Debt Service" for any period
means Funds from Operations (as defined herein) of the Company and its
Subsidiaries plus amounts which have been deducted for interest on
Debt of the Company and its Subsidiaries.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such
currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking
community, (ii) the ECU both within the European Monetary System and
for the settlement of transactions by public institutions of or within
the European Communities or (iii) any currency unit (or composite
currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located
at 600 Travis, 8th Floor, Houston, Texas 77002. For purposes of
Sections 3.01 and 10.02 hereof, the Corporate Trust Office shall also
include its office, which at the date hereof is located at 1900
Pacific, 16th Floor, Dallas, Texas 75201 and the office of the
Trustee's agent located on the date of execution of the Indenture at
80 Broad Street, 4th Floor, New York, New York, 10004.
"Corporation" includes corporations, associations, partnerships,
companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of the Company or any Subsidiary means any indebtedness of
the Company or any Subsidiary, other than contingent liabilities
(except to the extent set forth in (iii) below), in respect of
(without duplication) (i) borrowed money or evidenced by bonds, notes,
debentures or similar instruments, (ii) indebtedness secured by any
mortgage, pledge, lien, charge, encumbrance or any security interest
existing on property owned by the Company or any Subsidiary, (iii) the
reimbursement obligations, contingent or otherwise, in connection with
any letters of credit actually issued or amounts representing the
balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense
or trade payable, or all conditional sale obligations or obligations
under any title retention agreement, (iv) the principal amount of all
obligations of the Company or any Subsidiary with respect to
redemption, repayment or other repurchase of any Disqualified Stock or
(v) any lease of property by the Company or any Subsidiary as lessee
which is reflected on the Company's consolidated balance sheet as a
capitalized lease in accordance with GAAP to the extent, in the case
of items of indebtedness under (i) through (iii) above, that any such
items (other than letters of credit) would appear as a liability on
the Company's consolidated balance sheet in accordance with GAAP, but
does not include any obligation of the Company or any Subsidiary to be
liable for, or to pay, as obligor, guarantor or otherwise, Debt of
another Person (other than the Company or any Subsidiary) unless and
until the Company or such Subsidiary shall become directly liable in
respect thereof).
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" means, with respect to any Person, any
Capital Shares of such Person which by the terms of such Capital
Shares (or by the terms of any security into which it is convertible
or for which it is exchangeable or exercisable), upon the happening of
any event or otherwise (i) matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, (ii) is
convertible into or exchangeable or exercisable for Debt or
Disqualified Stock or (iii) is redeemable at the option of the Holder
thereof, in whole or in part, in each case on or prior to the Stated
Maturity (as defined herein) of the Securities.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy
Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of
the European Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Date" has the meaning specified in Section 304(b).
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU issued by the
government of one or more countries other than the United States of
America or by any recognized confederation or association of such
governments.
"Funds from Operations" for any period means net income plus
depreciation, amortization and extraordinary charges excluding gains
and losses on sales of its properties and securities.
"GAAP" means generally accepted accounting principles, as in
effect from time to time, as used in the United States applied on a
consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which
issued the Foreign Currency in which the Securities of a particular
series are payable, for the payment of which its full faith and credit
is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of
America or such government which issued the foreign currency in which
the Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by
the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by
a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or
principal of any such Government Obligation held by such custodian for
the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make
any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or
principal of the Government Obligation evidenced by such depository
receipt.
"Holder" means, in the case of a Registered Security (as defined
herein), the Person in whose name a Security is registered in the
Security Register (as defined herein) and, in the case of a Bearer
Security, the bearer thereof and, when used with respect to any
coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof, and shall include the terms of particular series of
Securities established as contemplated by Section 301; provided,
however, that, if at any time more than one Person is acting as
Trustee under this instrument, "Indenture" shall mean, with respect to
any one or more series of Securities for which such Person is Trustee,
this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and
shall include the terms of the or those particular series of
Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or
terms which relate solely to other series of Securities for which such
Person is not Trustee, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such
Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be
more or less than the principal face amount thereof at original
issuance.
"Interest," when used with respect to an Original Issue Discount
Security (as defined herein) which by its terms bears interest only
after Maturity, shall mean interest payable after Maturity (as defined
herein), and, when used with respect to a Security which provides for
the payment of Additional Amounts pursuant to Section 1011, includes
such Additional Amounts.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such
Security.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration,
notice of redemption, notice of option to elect repayment or
otherwise.
"Officers' Certificate" means a certificate signed by a Trust
Manager and an executive officer of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company or who may be an employee of or other
counsel for the Company and who shall be satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (as defined herein) (other than the Company)
in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons appertaining thereto, provided
that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article
Fourteen;
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(v) Securities converted into Common Shares or Preferred
Shares (as defined herein) pursuant to or in accordance with this
Indenture if the terms of such Securities provide for
convertibility pursuant to Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Company, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities
or coupons on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment," when used with respect to the Securities of
or within any series, means the place or places where the principal of
(and premium, if any) and interest on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306
in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security or a Security to which a mutilated, destroyed, lost or stolen
coupon appertains shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Security or the Security to which
the mutilated, destroyed, lost or stolen coupon appertains.
"Preferred Shares" means, with respect to any Person, Capital
Shares issued by such Person that are entitled to a preference or
priority over any other capital shares issued by such Person upon any
distribution of such Person's assets, whether by dividend or upon
liquidation.
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to
this Indenture.
"Registered Security" shall mean any Security which is registered
in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series
means the date specified for that purpose as contemplated by Section
301, whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security to
be repaid at the option of the Holder, the date fixed for such
repayment by or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security
to be repaid at the option of the Holder, the price at which it is to
be repaid by or pursuant to this Indenture.
"Representative" means the indenture trustee or other trustee,
agent or representative for an issue of Senior Debt.
"Responsible Officer," when used with respect to the Trustee,
means the Chairman or Vice-Chairman of the Board of Directors, the
Chairman or Vice-Chairman of the executive committee of the Board of
Directors, the President, any Vice President (whether or not
designated by a number or a word or words added before or after the
title "Vice President"), the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, any Corporate Trust Officer, the
Controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of
such officer's knowledge and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities" with respect to the Indenture as to
which such Person is Trustee shall have the meaning stated in the
first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (as defined in Article I, Rule 1-02 of
Regulation S-X, promulgated under the Securities Act of 1933, as
amended) of the Company.
"Special Record Date" for the payment of any Defaulted Interest
on the Registered Securities of or within any series means a date
fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment
of interest as the fixed date on which the principal of such Security
or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Company
or by one or more other Subsidiaries of the Company. For the purposes
of this definition, "voting stock" means stock having voting power for
the election of directors, whether at all times or only so long as no
senior class of stock has such voting power by reason of any
contingency.
"Total Assets" as of any date means the sum of (i) the Company's
Undepreciated Real Estate Assets (as defined herein) and (ii) all
other assets of the Company determined in accordance with GAAP (but
excluding goodwill and unamortized debt costs).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended, and as in force at the date as of which this
Indenture was executed, except as provided in Section 905.
"Trust Managers" means the individuals comprising the Board of
Trust Managers of the Company.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each Person who is then
a Trustee hereunder; provided, however, that if at any time there is
more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean only the Trustee with respect to
Securities of that series.
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the
Company and its Subsidiaries on such date, before depreciation and
amortization determined on a consolidated basis in accordance with
GAAP.
"Unencumbered Total Asset Value" means as of any date the sum of
the Company's Total Assets which are unencumbered by any mortgage,
lien, charge, pledge or security interest.
"United States" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who
is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws
of the United States or an estate or trust the income of which is
subject to United States federal income taxation regardless of its
source.
"Yield to Maturity" means the yield to maturity, computed at the
time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such
Security in accordance with generally accepted United States bond
yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in
the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including
certificates delivered pursuant to Section 1007) 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 or she has made such examination or investigation
as is necessary to enable him or her to express an informed
opinion as to whether or not such condition or covenant has been
complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion as to some matters and one or more
other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders. (1) Any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of the
Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders
in person or by agents duly appointed in writing. If Securities
of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities
of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with
the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or record or both are delivered to the
Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and
the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof
of execution of any such instrument or of a writing appointing
any such agent, or of the holding by any Person of a Security,
shall be sufficient for any purpose of this Indenture. The record
of any meeting of Holders of Securities shall be proved in the
manner provided in Section 1506.
(2) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other reasonable manner which the Trustee deems sufficient.
(3) The ownership of Registered Securities shall be proved
by the Security Register.
(4) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or
other depositary, wherever situated, if such certificate shall be
deemed by the Trustee to be satisfactory, showing that at the
date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect
of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding.
The ownership of Bearer Securities may also be proved in any
other manner which the Trustee deems sufficient.
(5) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may,
at its option, in or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled
to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding TIA Section 316(c), such
record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally
in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date; provided
that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not
later than eleven months after the record date.
In the absence of any such record date fixed by the Company, regardless as
to whether a solicitation of the Holders is occurring on behalf of the Company
or any Holder, the Trustee may, at its option, fix in advance a record date for
the determination of such Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Trustee
shall have no obligation to do so. Any such record date shall be a date not more
than 30 days prior to the first solicitation of Holders generally in connection
therewith no later than the date of such solicitation.
(6) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall
bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof
or in exchange therefor or in lieu thereof in respect of anything
done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the
Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 105. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at 600 Travis,
Houston, Texas 77002; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture
provides for notice of any event to Holders of Registered
Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each
such Holder affected by such event, at his address as it appears
in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such
notice. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect
to other Holders of Registered Securities or the sufficiency of
any notice to Holders of Bearer Securities given as provided
herein. Any notice mailed to a 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 or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction
hereof.
SECTION 108. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 109. Severability Clause. In case any provision in
this Indenture or in any Security or coupon shall be invalid,
illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this
Indenture or in the Securities or coupons, express or implied,
shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent, any Authenticating Agent
and their successors hereunder and the Holders any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law. This Indenture and the
Securities and coupons shall be governed by and construed in
accordance with the law of the State of New York. This Indenture
is subject to the provisions of the TIA that are required to be
part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity of any Security shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of
any series which specifically states that such provision shall
apply in lieu hereof), payment of interest or any Additional
Amounts or principal (and premium, if any) need not be made at
such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date or sinking fund payment date, or
at the Stated Maturity or Maturity, provided that no interest
shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity, as
the case may be.
SECTION 113. Immunity of Shareholders, Trust Managers,
Officers and Agents of the Company. In accordance with Article 15
of the Amended and Restated Declaration of Trust of the Company
("Declaration of Trust"), the Trustee recognizes and agrees that
the obligations of the Company under the Indenture and the
Securities and all documents delivered in the name of the Company
in connection herewith and therewith do not and shall not
constitute personal obligations of the Trust Managers, officers,
employees, agents or shareholders of the Company or any of them,
and shall not involve any claim against or personal liability on
the part of any of them, and that all persons including the
Trustee shall look solely to the assets of the Company for the
payment of any claim thereunder or for the performance thereof
and shall not seek recourse against such Trust Managers,
officers, employees, agents or shareholders of the Company or any
of them or any of their personal assets for such satisfaction.
The performance of the obligations of the Company under the
Indenture and the Securities and all documents delivered in the
name of the Company in connection therewith shall not be deemed a
waiver of any rights or powers of the Company, Trust Managers or
shareholders under the Declaration of Trust.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities,
if any, of each series and the Bearer Securities, if any, of each
series and related coupons shall be in substantially the forms as
shall be established in one or more indentures supplemental
hereto or approved from time to time by or pursuant to a Board
Resolution in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any
indenture supplemental hereto, and may have such letters, numbers
or other marks of identification or designation and such legends
or endorsements placed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which the Securities
may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of
Authentication. Subject to Section 611, the Trustee's certificate
of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
By: __________________________________, as Trustee
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If
Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding
clause (8) of Section 301 and the provisions of Section 302, any
such Security shall represent such of the Outstanding Securities
of such series as shall be specified therein and may provide that
it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series
represented thereby may from time to time be increased or
decreased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section
303 or 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver
any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or
in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of and any premium and
interest on any Security in permanent global form shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent global
Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (15) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 304, 305, 306, 906, 1107
or 1305);
(3) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities of the
series shall be payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall
be determined, the date or dates from which such interest shall accrue
or the method by which such date or dates shall be determined, the
Interest Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the method by
which such date shall be determined, and the basis upon which interest
shall be calculated if other than that of a 360 day year of twelve 30
day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, New York City, where the principal of (and
premium, if any), interest, if any, on, and Additional Amounts, if
any, payable in respect of, Securities of the series shall be payable,
any Registered Securities of the series may be surrendered for
registration of transfer, exchange or conversion and notices or
demands to or upon the Company in respect of the Securities of the
series and this Indenture may be served;
(6) the period or periods within which, the price or prices at
which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon
which Securities of the series may be redeemed, in whole or in part,
at the option of the Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the
price or prices at which, the currency or currencies, currency unit or
units or composite currency or currencies in which, and other terms
and conditions upon which Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities
of the series shall be issuable and, if other than the denomination of
$5,000, and in any integral multiple thereof, the denomination or
denominations in which any Bearer Securities of the series shall be
issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or, if applicable, the portion of the principal amount of
Securities of the series that is convertible in accordance with the
provisions of this Indenture, or the method by which such portion
shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium, if any) or interest or
Additional Amounts, if any, on the Securities of the series shall be
payable or in which the Securities of the series shall be denominated;
(12) whether the amount of payments of principal of (and premium,
if any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or
more currencies, currency units, composite currencies, commodities,
equity indices or other indices), and the manner in which such amounts
shall be determined;
(13) whether the principal of (and premium, if any) or interest
or Additional Amounts, if any, on the Securities of the series are to
be payable, at the election of the Company or a Holder thereof, in a
currency or currencies, currency unit or units or composite currency
or currencies other than that in which such Securities are denominated
or stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made, and the
time and manner of, and identity of the exchange rate agent with
responsibility for, determining the exchange rate between the currency
or currencies, currency unit or units or composite currency or
currencies in which such Securities are denominated or stated to be
payable and the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are to be so
payable;
(14) provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such events as may
be specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and
vice versa (if permitted by applicable laws and regulations), whether
any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and
of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than
in the manner provided in Section 305, and, if Registered Securities
of the series are to be issuable as a global Security, the identity of
the depositary for such series;
(17) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of
the series shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest,
the manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to
the Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(21) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1011 on the Securities
of the series to any Holder who is not a United States person
(including any modification to the definition of such term) in respect
of any tax, assessment or governmental charge and, if so, whether the
Company will have the option to redeem such Securities rather than pay
such Additional Amounts (and the terms of any such option);
(22) the obligation, if any, of the Company to permit the
conversion of the Securities of such series into the Company's Common
Shares or Preferred Shares, as the case may be, and the terms and
conditions upon which such conversion shall be effected (including,
without limitation, the initial conversion price or rate, the
conversion period, any adjustment of the applicable conversion price
and any requirements relative to the reservation of such shares for
purposes of conversion); and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the Securities
of such series.
SECTION 302. Denominations. The Securities of each series shall
be issuable in such denominations as shall be specified as
contemplated by Section 301. With respect to Securities of any series
denominated in Dollars, in the absence of any such provisions with
respect to the Securities of any series, the Registered Securities of
such series, other than Registered Securities issued in global form
(which may be of any denomination), shall be issuable in denominations
of $1,000 and any integral multiple thereof and the Bearer Securities
of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in denominations
of $5,000, and in any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating. The
Securities and any coupons appertaining thereto shall be executed on
behalf of the Company by a Trust Manager and its Chairman, its Chief
Executive Officer, its President, its Treasurer or one of its Vice
Presidents and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these individuals on the
Securities and coupons may be manual or facsimile signatures of the
present or any future such authorized officer and trustee and may be
imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
unless otherwise specified with respect to any series of Securities pursuant to
Section 301, a Bearer Security may be delivered in connection with its original
issuance only if the Person entitled to receive such Bearer Security shall have
furnished a certificate to Euroclear or CEDEL, as the case may be, in the form
set forth in Exhibit A-1 to this Indenture or such other certificate as may be
specified with respect to any series of Securities pursuant to Section 301,
dated no earlier than 15 days prior to the earlier of the date on which such
Bearer Security is delivered and the date on which any temporary Security first
becomes exchangeable for such Bearer Security in accordance with the terms of
such temporary Security and this Indenture. If any Security shall be represented
by a permanent global Bearer Security, then, for purposes of this Section and
Section 304, the notation of a beneficial owner's interest therein upon original
issuance of such Security or upon exchange of a portion of a temporary global
Security shall be deemed to be delivery in connection with its original issuance
of such beneficial owner's interest in such permanent global Security. Except as
permitted by Section 306, the Trustee or the Authenticating Agent shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled.
If all of the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such series shall
so permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate or formula, maturity date, date
of issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Sections 315(a) through 315(d)) shall be fully protected in
relying upon:
(1) an Opinion of Counsel stating that:
(a) the form or forms of such Securities and
any coupons have been established in conformity with
the provisions of this Indenture;
(b) the terms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture; and
(c) such Securities, together with any
coupons appertaining thereto, when completed by
appropriate insertions and executed and delivered by
the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this
Indenture and issued by the Company in the manner and
subject to any conditions specified in such Opinion
of Counsel, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance
with their terms, subject to applicable bankruptcy,
insolvency, reorganization and other similar laws of
general applicability relating to or affecting the
enforcement of creditors' rights generally and to
general equitable principles; and
(2) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
the Securities have been complied with and that, to the best of the
knowledge of the signers of such certificate, no Event of Default with
respect to any of the Securities shall have occurred and be
continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or a Company Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
or Security to which such coupon appertains a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of an authorized signatory, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are
issued, in registered form, or, if authorized, in bearer form with one
or more coupons or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities. In the case of
Securities of any series, such temporary Securities may be in global
form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further,
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of The Depository Trust Company
("DTC"). If any such temporary Security is issued in global form, then such
temporary global Security shall, unless otherwise provided therein, be delivered
to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euroclear and CEDEL, for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, or its agent, as the Company's agent for such
purpose, to be exchanged, in whole or, from time to time, in part, for
definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, unless otherwise specified in such
temporary global Security, upon such presentation by the Common Depositary, such
temporary global Security is accompanied by a certificate dated the Exchange
Date or a subsequent date and signed by Euroclear as to the portion of such
temporary global Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by CEDEL as
to the portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in
such other form as may be established pursuant to Section 301; and provided
further, that, definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary global Security only in compliance with the requirements
of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
CEDEL, as the case may be, to request such exchange on his behalf and delivers
to Euroclear or CEDEL, as the case may be, a certificate in the form set forth
in Exhibit A-1 to this Indenture (or in such other form as may be established
pursuant to Section 301), dated no earlier than 15 days prior to the Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary global Security will be
made unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company in a Place of
Payment a register for each series of Securities (the registers
maintained in such office or in any such office or agency of the
Company in a Place of Payment being herein sometimes referred to
collectively as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form
or any other form capable of being converted into written form within
a reasonable time. The Trustee, at its Corporate Trust Office, is
hereby appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities on such
Security Register as herein provided. In the event that the Trustee
shall cease to be Security Registrar, it shall have the right to
examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the Holder,
Registered Securities of any series may be exchanged for other Registered
Securities of the same series, of any authorized denomination or denominations
and of a like aggregate principal amount, containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at any
such office or agency. Whenever any such Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 301, Bearer Securities may not
be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and (subject
to Section 303) set forth in the applicable Officers' Certificate, or in any
indenture supplemental hereto, delivered as contemplated by Section 301, at the
option of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require, in their sole discretion, to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole, but not in part,
only to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to
DTC for such global Security selected or approved by the Company or to a nominee
of such successor to DTC. If at any time DTC notifies the Company that it is
unwilling or unable to continue as depositary for the applicable global Security
or Securities or if at any time DTC ceases to be a clearing agency registered
under the Securities Exchange Act of 1934 if so required by applicable law or
regulation, the Company shall appoint a successor depositary with respect to
such global Security or Securities. If (x) a successor depositary for such
global Security or Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (y) an Event of Default has occurred and is
continuing and the beneficial owners representing a majority in principal amount
of the applicable series of Securities represented by such global Security or
Securities advise DTC to cease acting as depositary for such global Security or
Securities or (z) the Company, in its sole discretion, determines at any time
that all Outstanding Securities (but not less than all) of any series issued or
issuable in the form of one or more global Securities shall no longer be
represented by such global Security or Securities, then the Company shall
execute, and the Trustee shall authenticate and deliver definitive Securities of
like series, rank, tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such global Security or Securities. If
any beneficial owner of an interest in a permanent global Security is otherwise
entitled to exchange such interest for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable notice
provided in the permanent global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Company shall execute, and the Trustee
shall authenticate and deliver definitive Securities in aggregate principal
amount equal to the principal amount of such beneficial owner's interest in such
permanent global Security. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be surrendered for
exchange by DTC or such other depositary as shall be specified in the Company
Order with respect thereto to the Trustee, as the Company's agent for such
purpose; provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
to be redeemed and ending on the relevant Redemption Date, if the Security for
which exchange is requested may be among those selected for redemption. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, Interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 304, 906, 1107 or 1305 not involving any
transfer.
The Company or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may be
among those selected for redemption during a period beginning at the opening of
business 15 days before selection of the Securities to be redeemed under Section
1103 and ending at the close of business on (A) if such Securities are issuable
only as Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated
Security or a Security with a mutilated coupon appertaining to it is surrendered
to the Trustee or the Company, together with, in proper cases, such security or
indemnity as may be required by the Company or the Trustee to save each of them
or any agent of either of them harmless, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of
the same series and principal amount, containing identical terms and provisions
and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium, if any),
any interest on and any Additional Amounts with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, interest on any
Registered Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest at the office or agency of the Company maintained for
such purpose pursuant to Section 1002; provided, however, that each
installment of interest on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto
pursuant to Section 308, to the address of such Person as it appears
on the Security Register or (ii) transfer to an account maintained by
the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case may be,
with respect to that portion of such permanent global Security held for its
account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed
payment (which shall not be less than 30 days after such notice is
received by the Trustee), and at the same time the Company shall
deposit with the Trustee an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less then 10 days prior to the date of the proposed
payment and not less than 15 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date. The
Company may, in its discretion, direct the Trustee to publish in the
name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper in each Place of
Payment, but such publications shall not be a condition precedent to
the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Registered Securities
of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2). In
case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such
office or agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such proposed
date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture; or
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Registered Security is registered as the
owner of such Security for the purpose of receiving payment of
principal of (and premium, if any), and (subject to Sections 305 and
307) interest on, such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder of any Bearer Security and the Holder of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with respect to such
global Security or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as
Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons surrendered
for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking
fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities and
coupons and Securities and coupons surrendered directly to the Trustee
for any such Purpose shall be promptly cancelled by it; provided,
however, where the Place of Payment is located outside of the United
States, the Paying Agent at such Place of Payment may cancel the
Securities surrendered to it for such purposes prior to delivering the
Securities to the Trustee. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
unauthenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the
Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless
and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Cancelled Securities and coupons held by
the Trustee shall be destroyed by the Trustee and the Trustee shall
deliver a certificate of such destruction to the Company, unless by a
Company Order the Company directs their return to it.
SECTION 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of
any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year consisting of twelve 30-day
months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series herein expressly provided for
and any right to receive Additional Amounts, as provided in Section
1011), and the Trustee, upon receipt of a Company Order, and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section
305, (ii) Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment
money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are
to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount in the currency or
currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and such
coupons not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, and any Additional
Amounts with respect thereto, to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of
the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and
premium, if any), and any interest and Additional Amounts for
whose payment such money has been deposited with or received by
the Trustee, but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever
used herein with respect to any particular series of Securities,
means any one of the following events (whatever the reason for
such Event of Default and whether or not it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of that
series or of any coupon appertaining thereto, when such interest,
Additional Amounts or coupon becomes due and payable, and
continuance of such default for a Period of 30 days;
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series when it becomes due and
payable at its Maturity;
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of any Security of that series;
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture with respect to any
Security of that series (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of
Default" hereunder;
(5) default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company
(including obligations under leases required to be capitalized on
the balance sheet of the lessee under generally accepted
accounting principles, but not including any indebtedness or
obligations for which recourse is limited to property purchased)
in an aggregate principal amount in excess of $___________ or
under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (including such
leases but not including such indebtedness or obligations for
which recourse is limited to property purchased) in an aggregate
principal amount in excess of $____________ by the Company,
whether such indebtedness now exists or shall hereafter be
created, which default shall have resulted in such indebtedness
becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable or such
obligations being accelerated, without such acceleration having
been rescinded or annulled;
(6) the Company or any Significant Subsidiary, pursuant to
or within the meaning of any Bankruptcy Law (a) becomes
insolvent, (b) fails generally to pay its debts as they become
due, (c) admists in writing its inability to pay its debts
generally as they become due, (d) commences a voluntary case or
proceeding, (e) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding,
(f) consents to the appointment of a Custodian of it or for any
part of its property, (g) consents to or acquiesces in the
institution of bankruptcy or insolvency against it, (h) applies
for, consents to or acquiesces in the appointment of or taking
possession by a Custodian of the Company or any benefit of its
creditors, or (j) takes any corporate action in furtherance of or
to facilitate, conditionally or otherwise, any of the foregoing;
(7) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company or any
Signifcant Subsidiary in an involuntary case or proceeding under
any Bankruptcy Law which shall (a) order the winding-up or
liquidation of its affairs; (b)(1) approve as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition in respect of the Company or Subsidiary or (2)
appoint a Custodian of the Company or any Significant Subsidiary
or for any part of its property and such judgment or decree shall
remain unstayed and in effect for a period of 30 consecutive
days; or (c) any bankruptcy or insolvency petition or application
is filed, or any bankruptcy or insolvency proceeding is
commenced, against the Company or any Significant Subsidiary and
such petition, application or proceeding is not dismissed within
60 days; or any warrant of attachment is issued against any
portion of the property of the Company or any Significant
Subsidiary which is not released within 60 days of service; or
(8) any other Event of Default provided with respect to
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S. Code
or any similar Federal or State law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default other than an Event of Default
specified in Section 501(6) or (7) with respect to Securities of
any series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of
that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms
thereof) of all the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and
to the Trustee it given by the Holders), and upon any such
declaration such principal or specified portion thereof shall
become immediately due and payable; provided, however, that if
such Event of Default shall occur pursuant to Section 501(6) or
Section 501(7) hereof, such acceleration shall be automatic and
shall occur without notice.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency or currency unit or composite
currency in which the Securities of such series are payable
(except as otherwise specified Pursuant to Section 301 for the
Securities of such series):
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Outstanding
Securities of that series and any related coupons;
(B) the principal of (and premium, if any, on) any
Outstanding Securities of that series which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates borne by or provided
for in such Securities;
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest and
any Additional Amounts at the rate or rates borne by or
provided for in such Securities; and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or
premium, if any) or interest on Securities of that series which
have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of
interest or Additional Amounts, if any, on any Security of any
series and any related coupon when such interest or Additional
Amount becomes due and payable and such default continues for a
period of 30 days; or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest and Additional Amounts, with interest upon any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of interest
or Additional Amounts, if any, at the rate or rates borne by or provided for in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities of such series and
collect the monies adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities
of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of
the Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment
of overdue principal, premium, if any, or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such
series, of principal (and premium, if any) and interest and
Additional Amounts, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding;
and
(ii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the
same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this
Indenture or any of the Securities or coupons may be prosecuted and
enforced by the Trustee without the possession of any of the
Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the
Holders of the Securities and coupons in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected. Any money collected
by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money on account of principal (or
premium, if any) or interest and any Additional Amounts, upon
presentation of the Securities or coupons, or both, as the case may
be, and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium, if any) and
interest and any Additional Amounts payable, in respect, of which or
for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the aggregate
amounts due and payable on such Securities and coupons for principal
(and premium, if any), interest and Additional Amounts, respectively;
and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of
any series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee, in its sole
discretion, against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium, if any, Interest and Additional Amounts. Notwithstanding any
other provision in this Indenture, the Holder of any Security or
coupon shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject
to Sections 305 and 307) interest on, and any Additional Amounts in
respect of, such Security or payment of such coupon on the respective
due dates expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee
or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in
every such case, the Company, the Trustee and the Holders of
Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding
had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders of Securities or coupons, as the case
may be.
SECTION 512. Control by Holders of Securities. The Holders of not
less than a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction; and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders
of Securities of such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such
series and any related coupons waive any past default hereunder with
respect to such series and its consequences, except a default:
(1) in the payment of the principal of (or premium, if any)
or interest on or Additional Amounts payable in respect of any
Security of such series or any related coupons; or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in
such suit of any undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding
Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or
interest on any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after
the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of
any series, the Trustee shall transmit in the manner and to the extent
provided in TIA Section 313(c), notice of such default hereunder known
to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on or any
Additional Amounts with respect to any Security of such series, or in
the payment of any sinking fund installment with respect to the
Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is
in the interests of the Holders of the Securities and coupons of such
series; and provided further that in the ease of any default or breach
of the character specified in Section 501(4) with respect to the
Securities and coupons of such series, no such notice to Holders shall
be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is,
or after notice or lapse of time or both would become, an Event of
Default with respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions
of TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Security, together with any
coupons appertaining there to, to the Trustee for authentication
and delivery pursuant to Section 303 which shall be sufficiently
evidenced as provided therein) and any resolution of the Board of
Trust Managers may be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any
series or any related coupons pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other
paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to
make reasonable examination of the books, records and premises of
the Company, personally or by agent or attorney following
reasonable notice to the Company;
(7) the Trustee may execute any of the trusts or Powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any willful misconduct or negligence on the part
of any agent or attorney appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
(9) for all purposes under this Indenture, subject to the
provisions of Sections 601 and 602, the Trustee shall not be
deemed to have notice or knowledge of any default or Event of
Default (other than under Section 501(1), (2) or (3)) unless a
Responsible Officer assigned to and working in the Trustee's
Corporate Trust Office has actual knowledge thereof or unless
written notice of any default or Event of Default is received by
the Trustee at the Corporate Trust Office and such notice refers
to the Securities generally, the Company or this Indenture; and
(10) 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 power, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities,
except the Trustee's certificate of authentication, and in any coupons
shall be taken as the statements of the Company, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for
their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities or
coupons, except that the Trustee represents that it is duly authorized
to execute and deliver this Indenture, authenticate the Securities and
perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner
or pledgee of Securities and coupons and, subject to TIA Sections
310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 606. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of in express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon
its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may
be attributable to its negligence or willful misconduct; and
(3) to indemnify each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or willful misconduct on
its own part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any
of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest on
particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests. There shall at all times be a Trustee hereunder which shall
be eligible to act as Trustee under TIA Section 310(a)(1) and shall
have a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant
to law or the requirements of Federal, State, Territorial or District
of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series
delivered to the Trustee and to the Company.
(4) If at any time:
(A) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company
or by any Holder of a Security who has been a bona fide Holder of
a Security for at least six months;
(B) the Trustee shall cease to be eligible under Section 608
and shall fail to resign after written request therefor by the
Company or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months; or
(C) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint
a successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee
may be appointed with respect to the Securities of one or more or all
of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within
one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the
Company or the Holders of Securities and accepted appointment in the
manner hereinafter provided, any Holder of a Security who has been a
bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
(6) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series
and each appointment of a successor Trustee with respect to the
Securities of any series 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. (1) In case
of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and
shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 607.
(2) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto, pursuant to Article Nine
hereof, wherein each successor Trustee shall accept such appointment
and which (A) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (B) if the
retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested
in the retiring Trustee, and (C) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a trust
or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates.
(3) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Trustee all such rights, powers
and trusts referred to in paragraph (a) or (b) of this Section, as the
case may be.
(4) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 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 ally time
when any of the Securities remain Outstanding, the Trustee may appoint
an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon
exchange, registration of transfer or partial redemption or repayment
thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company
and shall at all times be a bank or trust company or corporation
organized and doing business and in good standing wider the laws of
the United States of America or of any State or the District of
Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authorities.
If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. In case at any time
an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner end with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign
by giving written notice of resignation to the Trustee for such series and to
the Company. The Trustee for any series of Securities may at any time terminate
the agency of an Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
_________________________________, as Trustee
By:_______________________________
as Authenticating Agent
By:_______________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every
Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any Authenticating Agent nor any Paying Agent nor any
Security Registrar shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the
Holders of Securities in accordance with TIA Section 312, regardless
of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after ___________
of each year commencing with the first _________ after the first
issuance of Securities pursuant to this Indenture, the Trustee shall
transmit by mail to all Holders of Securities as provided in TIA
Section 313(c) a brief report dated as of such ___________ if required
by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time
by such rules and regulations; and
(2) transmit by mail to the Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and
to the extent provided in TIA Section 313(c), such summaries of
any information, documents and reports required to be filed by
the Company pursuant to Section 1006 and paragraph (1) of this
Section as may be required by rules and regulations prescribed
from time to time by the Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list,
in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Registered Securities of such
series as of such Regular Record Date, or if there is no Regular
Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such
series; and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished,
provided, however, that, so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and
Sales, Leases and Conveyances Permitted Subject to Certain
Conditions. The Company may consolidate with, or sell, lease or
convey all or substantially all of its assets to, or merge with
or into any other corporation, provided that in any such case,
(1) either the Company shall be the continuing corporation, or
the successor corporation shall be a corporation organized and
existing under the laws of the United States or a State thereof
and such successor corporation shall expressly assume the due and
punctual payment of the principal of (and premium, if any) and
any interest (including all Additional Amounts, if any, payable
pursuant to Section 1011) on all of the Securities, according to
their tenor, and the due and punctual performance and observance
of all of the covenants and conditions of this Indenture to be
performed by the Company by supplemental indenture, complying
with Article Nine hereof, satisfactory to the Trustee, executed
and delivered to the Trustee by such corporation and (2)
immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or
any Subsidiary as a result thereof as having been incurred by the
Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or the lapse
of time, or both, would become an Event of Default, shall have
occurred and be continuing.
SECTION 802. Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale, lease or conveyance
and upon any such assumption by the successor corporation, such
successor corporation shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as
the party of the first part, and the predecessor corporation,
except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such
successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any
or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation,
instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously
shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued
at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under
Section 801 is also subject to the condition that the Trustee receive
an Officers' Certificate and an Opinion of Counsel to the effect that
any such consolidation, merger, sale, lease or conveyance, and the
assumption by any successor corporation, complies with the provisions
of this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities contained;
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company;
(3) to add any additional Events of Default 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;
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the
payment of principal of or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange
for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided that any such action
shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect;
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Security Outstanding of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provisions;
(6) to secure the Securities;
(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and
301, including the provisions and procedures relating to
Securities convertible into Common Shares or Preferred Shares, as
the case may be;
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee;
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture
which shall not be inconsistent with the provisions of this
Indenture, provided such provisions shall not adversely affect
the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall
not adversely affect the interests of the Holders of Securities
of such series and any related coupons or any other series of
Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such
supplemental indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by or pursuant
to a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities and any related coupons under this
Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security
affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount thereof
or the rate or amount of interest thereon or Additional Amounts
payable in respect thereof, or any premium payable upon the
redemption thereof, or change any obligation of the Company to
pay Additional Amounts pursuant to Section 1008 (except as
contemplated by Section 801(1) and permitted by Section 901(1)),
or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the amount thereof provable in bankruptcy pursuant
to Section 504, or adversely affect any right of repayment at the
option of the Holder of any Security, or change any Place of
Payment where, or the currency or currencies, currency unit or
units or composite currency or currencies in which, any Security
or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or after
the Redemption Date or the Repayment Date, as the case may be);
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver with respect
to such series (or compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting; or
(3) modify any of the provisions of this Section, Section
513 or Section 1012, except to increase the required percentage
to effect such action or to provide that certain other provisions
of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected
thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In executing,
or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the
trusts created by this Indenture, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may,
and shall, if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Securities of any series so modified as to conform, in the opinion of
the Trustee and the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, Interest and
Additional Amounts. The Company covenants and agrees for the benefit
of the Holders of each series of Securities that it will duly and
punctually pay the principal of (and premium, if any) and interest on
and any Additional Amounts payable in respect of the Securities of
that series in accordance with the terms of such series of Securities,
any coupons appertaining thereto and this Indenture. Unless otherwise
specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on and any Additional Amounts payable in
respect of Bearer Securities on or before Maturity, other than
Additional Amounts, if any, payable as provided in Section 1011 in
respect of principal of (or premium, if any, on) such a Security,
shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as
they severally mature. Unless otherwise specified with respect to
Securities of any series pursuant to Section 301, at the option of the
Company, all payments of principal may be paid by check to the
registered Holder of the Registered Security or other person entitled
thereto against surrender of such Security. SECTION 1002. Maintenance
of Office or Agency. If Securities of a series are issuable only as
Registered Securities, the Company shall maintain in each Place of
Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment
or conversion, where Securities of that series may be surrendered for
registration of transfer or exchange and where notices and demands to
or upon the Company in respect of the Securities of that series and
this Indenture may be served. If Securities of a series are issuable
as Bearer Securities, the Company will maintain: (A) in the Borough of
Manhattan, New York City, an office or agency where any Registered
Securities of that series may be presented or surrendered for payment
or conversion, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange, where notices and demands to
or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment
or conversion in the circumstances described in the following
paragraph (and not otherwise); (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is
located outside the United States, an office or agency where
Securities of that series and related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts
payable on Securities of that series pursuant to Section 1008) or
conversion; provided, however, that if the Securities of that series
are listed on the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the
Securities of that series in Luxembourg or any other required city
located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange; and (C) subject
to any laws or regulations applicable thereto, in a Place of Payment
for that series located outside the United States an office or agency
where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of each such
office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series
and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer
Securities of that series pursuant to Section 1008) or conversion at
the offices specified in the Security, in London, England, and the
Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the
Company hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States; provided, however, that, if the Securities of a series are payable in
Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any Additional Amounts payable on Securities of such series
pursuant to Section 1008) shall be made at the office of the designated agent of
the Company's Paying Agent in the Borough of Manhattan, New York City, if (but
only if) payment in Dollars of the full amount of such principal, premium,
interest or Additional Amounts, as the case may be, at all offices or agencies
outside the United States maintained for the purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities pursuant to Section 301 with respect to a series of Securities,
the Company hereby designates as a Place of Payment for each series of
Securities the office or agency of the Company in the Borough of Manhattan, New
York City, and initially appoints the Trustee at its Corporate Trust Office as
Paying Agent and as its agent to receive all such presentations, surrenders, and
notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of any Securities and any related coupons, it
will, on or before each due date of the principal of (and premium, if
any), or interest on or Additional Amounts in respect of, any of the
Securities of that series, segregate and hold in trust for the benefit
of the Persons entitled there to a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series)
sufficient to pay the principal (and premium, if any) or interest or
Additional Amounts so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities and any related coupons, it will, before each due date of the
principal of (and premium, if any), or interest on or Additional Amounts in
respect of, any Securities of that series, deposit with a Paying Agent a sum (in
the currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the principal
(and premium, if any) or interest or Additional Amounts, so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest or Additional Amounts and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will
(1) hold all sums held by it for the payment of principal of
(and premium, if any) or interest on Securities or Additional
Amounts in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities) in the making of any
such payment of principal (and premium, if any) or interest or
Additional Amounts; and
(3) at any time during the continuance of any such default
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further Liability with respect to such
sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on,
or any Additional Amounts in respect of, any Security of any series and
remaining unclaimed for two years after such principal (and premium, if any),
interest of Additional Amounts have become due and payable shall be paid to the
Company upon Company Request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment of such
principal of (and premium, if any) or interest on, or any Additional Amounts in
respect of, any Security, without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Existence. Subject to Article Eight, the Company
will do or cause to be done all things necessary to preserve and keep
in full force and effect its existence, rights and franchises;
provided, however, that the Company shall not be required to preserve
any right or franchise if the Board of Trust Managers shall determine
that the preservation thereof is no longer desirable in the conduct of
the business of the Company.
SECTION 1005. Payment of Taxes and Other Claims. The Company will
pay or discharge or cause to be paid or discharged, before the same
shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required
to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is
being contested in good faith.
SECTION 1006. Provision of Financial Information. Whether or not
the Company is subject to Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company will prepare the annual reports,
quarterly reports and other documents within 15 days of each of the
respective dates by which the Company would have been required to file
with the Commission pursuant to such Section 13 or 15(d) and will (i)
transmit by mail to all Holders, as their names and addresses appear
in the Security Register, without cost to such Holders copies of the
annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 if the
Company were subject to such Sections, (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents
which the Company would have been required to file with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
if the Company were subject to such Sections and (iii) promptly upon
written request and payment of the reasonable cost of duplication and
delivery, supply copies of such documents to any prospective Holder.
SECTION 1007. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal
year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his
or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture and, in the event of any noncompliance,
specifying such noncompliance and the nature and status thereof. For
purposes of this Section 1010, such compliance shall be determined
without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1008. Additional Amounts. If any Securities of a series
provide for the payment of Additional Amounts, the Company will pay to
the Holder of any Security of such series or any coupon appertaining
thereto Additional Amounts as may be specified as contemplated by
Section 301. Whenever in this Indenture there is mentioned, in any
context except in the case of Section 502(1), the payment of the
principal of or any premium or interest on, or in respect of, any
Security of any series or payment of any related coupon or the net
proceeds received on the sale or exchange of any Security of any
series, such mention shall be deemed to include mention of the payment
of Additional Amounts provided by the terms of such series established
pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. In the event that the Trustee or any Paying Agent, as the
case may be, shall not so receive the above-mentioned certificate, then the
Trustee or such Paying Agent shall be entitled (i) to assume that no such
withholding or deduction is required with respect to any payment of principal or
interest with respect to any Securities of a series or related coupons until it
shall have received a certificate advising otherwise and (ii) to make all
payments of principal and interest with respect to the Securities of a series or
related coupons without withholding or deductions until otherwise advised. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to hold
them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the Company's
not furnishing such an Officers' Certificate.
SECTION 1009. Waiver of Certain Covenants. The Company may omit
in any particular instance to comply with any term, provision or
condition set forth in Sections 1004 to 1009, inclusive, if before or
after the time for such compliance the Holders of at least a majority
in principal amount of all outstanding Securities of such series, by
Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition
except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series
which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election
of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the
election of the Company of less than all of the Securities of any
series, the Company shall, at least 45 days prior to the giving of the
notice of redemption in Section 1104 (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities of such
series to be redeemed. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided
in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with all 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 election for redemption
of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the
principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that
series.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be
given in the manner provided in Section 106, not less than 30 days nor
more than 60 days prior to the Redemption Date, unless a shorter
period is specified by the terms of such series established pursuant
to Section 301, to each Holder of Securities to be redeemed, but
failure to give such notice in the manner herein provided to the
Holder of any Security designated for redemption as a whole or in
part, or any defect in the notice to any such Holder, shall not affect
the validity of the proceedings for the redemption of any other such
Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts,
if any;
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106,
if any, will become due and payable upon each such Security, or the
Portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date;
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any, or for conversion;
(7) that the redemption is for a sinking fund, if such is the
case;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any
Paying Agent is furnished;
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Company, on which
such exchanges may be made;
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who desires to
convert Securities for redemption must satisfy the requirements for
conversion contained in such Securities, the then existing conversion
price or rate, and the date and time when the option to convert shall
expire.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price. On any Redemption
Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it
may not do in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series) sufficient to pay on the
Redemption Date the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the
Securities or portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currencies,
currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except is otherwise
specified pursuant to Section 301 for the Securities of such series)
(together with accrued interest, if any, to the Redemption Date), and
from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to heir interest and
the coupons for such interest appertaining to any Bearer Securities so
to be redeemed, except to the extent provided below, shall be void.
Upon surrender of any such Security for redemption in accordance with
said notice, together with all coupons, if any, appertaining thereto
maturing after the Redemption Date, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of coupons for such
interest; and provided further that, except as otherwise provided with
respect to Securities convertible into Common Shares or Preferred
Shares, installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security without service charge a new Security
or Securities of the same series, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security
so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated
by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of such Securities of any series is herein referred to as an "optional
sinking fund payment". It provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. The Company may, in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of a
series, (1) deliver Outstanding Securities of such series (other than
any previously called for redemption) together in the case of any
Bearer Securities of such series with all unmatured coupons
appertaining thereto and (2) apply as a credit Securities of such
series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, as provided for by the terms of such Securities, or which
have otherwise been acquired by the Company; provided that such
Securities so delivered or applied as a credit have not been
previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the applicable Redemption Price
specified in such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment
shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less
than 60 days prior to each sinking fund payment date for Securities of
any series, the Company will deliver to the Trustee in Officers'
Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by
payment of cash in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series) and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund
payment, and will also deliver to the Trustee any Securities to be so
delivered and credited. If such Officers' Certificate shall specify an
optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay
the amount therein specified. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities
of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities,
if any, and (except as otherwise specified by the terms of such series
established pursuant to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series
subject to repayment in whole or in part it the option of the Holders
thereof will, unless otherwise provided in the terms of such
Securities, be repaid at a price equal to the principal amount
thereof, together with interest, if any, thereon accrued to the
Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that at least one Business Day prior
to the Repayment Date it will deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series) sufficient to pay the principal
(or, if so provided by the terms of the Securities of any series, a
percentage of the principal) of, and (except if the Repayment Date
shall be in Interest Payment Date) accrued interest on, all the
Securities or portions thereof, as the case may be, to be repaid on
such date.
SECTION 1303. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will contain
an "Option to Elect Repayment" form on the reverse of such Securities.
In order for any Security to be repaid at the option of the Holder,
the Trustee must receive at the Place of Payment therefor specified in
the terms of such Security (or at such other place or places of which
the Company shall from time to time notify the Holders of such
Securities) not earlier than 60 days nor later than 30 days prior to
the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse
thereof duly completed by the Holder (or by the Holder's attorney duly
authorized in writing) or (2) a telegram, telex, facsimile
transmission or a Letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc.
("NASD"), or a commercial bank or trust company in the United States
setting forth the name of the Holder of the Security, the principal
amount of the Security, the principal amount of the Security to be
repaid, the CUSIP number, if any, or a description of the tenor and
terms of the Security, a statement that the option to elect repayment
is being exercised thereby and a guarantee that the Security to be
repaid, together with the duly completed form entitled "Option to
Elect Repayment" on the reverse of the Security, will be received by
the Trustee not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter; provided,
however, that such telegram, telex, facsimile transmission or letter
shall only be effective if such Security and form duly completed are
received by the Trustee by such fifth Business Day. If less than the
entire principal amount of such Security is to be repaid in accordance
with the terms of such Security, the principal amount of such Security
to be repaid, in increments of the minimum denomination for Securities
of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security
providing for repayment, at the option of the Holder thereof may not
be repaid in part if, following such repayment, the unpaid principal
amount of such Security would be less than the minimum authorized
denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of
any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable. If Securities of any series providing for repayment at
the option of the Holders thereof shall have been surrendered as
provided in this Article and as provided by or pursuant to the terms
of such Securities, such Securities or the portions thereof, as the
case may be, to be repaid shall become due and payable and shall be
paid by the Company on the Repayment Date therein specified, and on
and after such Repayment Date (unless the Company shall default in the
payment of such Securities on such Repayment Date) such Securities
shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so
to be repaid, except to the extent provided below, shall be void. Upon
surrender of any such Security for repayment in accordance with such
provisions, together with all coupons, if any, appertaining thereto
maturing after the Repayment Date, the principal amount of such
Security so to be repaid shall be paid by the Company, together with
accrued interest, if any, to the Repayment Date; provided, however,
that coupons whose Stated Maturity is on or prior to the Repayment
Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and,
unless otherwise specified pursuant to Section 301, only upon
presentation and surrender of such coupons; and provided further that,
in the case of Registered Securities, installments of interest, if
any, whose Stated Maturity is on or prior to the Repayment Date shall
be payable (but without interest thereon, unless the Company shall
default in the payment thereof) to the Holders of such Securities, or
one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1302 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
coupons. If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge and at the expense of
the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an
aggregate principal amount equal to and in exchange for the portion of
the principal of such Security so surrendered which is not to be
repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301,
provision is made for either or both of (a) defeasance of the
Securities of or within a series under Section 1402 or (b) covenant
defeasance of the Securities of or within a series under Section 1403,
then the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article (with such
modifications thereto as may be specified pursuant to Section 301 with
respect to any Securities), shall be applicable to such Securities and
any coupons appertaining thereto, and the Company may at its option by
Board Resolution, at any time, with respect to such Securities and any
coupons appertaining thereto, elect to have Section 1402 (if
applicable) or Section 1403 (if applicable) be applied to such
Outstanding Securities and any coupons appertaining thereto upon
compliance with the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect
to any Securities of or within a series, the Company shall be deemed
to have been discharged from its obligations with respect to such
Outstanding Securities and any coupons appertaining thereto on the
date the conditions set forth in Section 1404 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Outstanding Securities and any
coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other
Sections of this Indenture referred to in clauses (A) and (B) below,
and to have satisfied all of its other obligations under such
Securities and any coupons appertaining thereto and this Indenture
insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities
and any coupons appertaining thereto to receive, solely from the trust
fund described in Section 1404 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any)
and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 305, 306, 1002 and 1003 and
with respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Section 1011, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article Fourteen, the Company
may exercise its option under this Section notwithstanding the prior
exercise of its option under Section 1403 with respect to such
Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise of
the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be released from
its obligations under Sections 1004 to 1009, inclusive, and, if
specified pursuant to Section 301, its obligations under any other
covenant, with respect to such Outstanding Securities and any coupons
appertaining thereto on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "covenant defeasance"), and
such Securities and any coupons appertaining thereto shall thereafter
be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences
of any thereof) in connection with Sections 1004 to 1009, inclusive,
or such other covenant, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities and
any coupons appertaining thereto, the Company may omit to comply with
and shall have no liability in respect of any term, condition or
limitations set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of
reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply
shall not constitute a default or an Event of Default under Section
501(4) or 501(8) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities
and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402
or Section 1403 to any Outstanding Securities of or within a series
and any coupons appertaining thereto:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying
the requirements o(pound) Section 608 who shall agree to comply
with the provisions of this Article Fourteen applicable to it) as
trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any
coupons appertaining thereto, (A) 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 (B) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on the
basis of the currency, currencies or currency unit in which such
Securities and coupons appertaining thereto are then specified as
payable at Stated Maturity) which through the scheduled payment
of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due
date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any coupons appertaining
thereto, money in an amount, or (C) a combination thereof, in any
case, in an amount, sufficient, without consideration of any
reinvestment of such principal and interest, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i)
the principal of (and premium, if any) and interest, if any, on
such Outstanding Securities and any coupons appertaining thereto
on the Stated Maturity of such principal or installment of
principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding
Securities and any coupons appertaining thereto on the day on
which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities and any coupons
appertaining thereto;
(2) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which
the Company is a party or by which it is bound;
(3) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to
such Securities and any coupons appertaining thereto shall have
occurred and be continuing on the date of such deposit or,
insofar as Sections 501(6) and 501(7) are concerned, at any time
during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(4) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii)
since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm
that, the Holder of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and
will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if
such defeasance had not occurred;
(5) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of such Outstanding Securities and
any coupons appertaining thereto will not recognize income, gain
or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not
occurred;
(6) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent to the defeasance under Section
1402 or the covenant defeasance under Section 1403 (as the case
may be) have been complied with and an Opinion of Counsel to the
effect that either (i) as a result of a deposit pursuant to
subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of
1940, as amended, by the Company, with respect to the trust funds
representing such deposit or by the Trustee for such trust funds
or (ii) all necessary registrations under said Act have been
effected; and
(7) Notwithstanding any other provisions of this Section,
such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection
therewith pursuant to Section 301;
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the
provisions of the last paragraph of Section 1003, all money and
Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of
this Section 1405, the "Trustee") pursuant to Section 1404 in respect
of any Outstanding Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any
coupons appertaining thereto and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities and any coupons appertaining thereto of all
sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such
money need not be segregated from other funds except to the extent
required by law.
Unless otherwise specified with respect to any Security pursuant to Section
301, if, after a deposit referred to in Section 1404(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 301 or the terms of such Security to receive
payment in a currency or currency unit other than that in which the deposit
pursuant to Section 1404(a) has been made in respect, of such Security, or (b) a
Conversion Event occurs in respect of the currency or currency unit in which the
deposit pursuant to Section 1404(a) his been made, the indebtedness represented
by such Security and any coupons appertaining thereto shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any), and interest, if any, on such Security as
the same becomes due out of the proceeds yielded by converting (from time to
time as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the currency or currency
unit in which such Security becomes payable as a result of such election or
Conversion Event based on the applicable market exchange rate for such currency
or currency unit in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such currency or currency
unit in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 607, the Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or Government Obligations (or other property and
any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings. (1) The Trustee
may at any time call a meeting of Holders of Securities of any series
for any purpose specified in section 1501, to be held at such time and
at such place in the Borough of Manhattan, New York City, or in London
as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not
less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(2) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of
the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to
cause the meeting to be held is provided herein, then the Company
or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, New York City, or in London
for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (1) of this
Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument
in writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons
who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series
shall constitute a quorum for a meeting of Holders of Securities of
such series; provided, however, that if any action is to be taken at
such meeting with respect to a consent or waiver which this Indenture
expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities
of a series, the Persons entitled to vote such specified percentage in
principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period
of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum
at the reconvening of any such adjourned meeting, such adjourned
meeting may be further adjourned for a period of not less than 10
days; at the reconvening of any meeting adjourned or further adjourned
for lack of a quorum, the persons entitled to vote 25% in the
aggregate principal amount of the Securities at the time outstanding
shall constitute a quorum for the taking of any action set forth in
the notice of the original meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(a),
except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be
reconvened.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities
represented at such meeting; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action
shall be taken into account in determining whether such request,
demand, authorization, direction, notice, consent, waiver or
other action has been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (1) 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.
(2) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders of Securities as
provided in Section 1502(2), in which case the Company or the
Holders of Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall
be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series
represented at the meeting.
(3) At any meeting each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or
represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged
as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Security of such series or
proxy.
(4) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may
be adjourned from time to time by Persons entitled to vote a
majority in principal amount of the Outstanding Securities of
such series represented at the meeting, and the meeting may be
held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series
or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities of such series held or
represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities
of any Series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more persons having knowledge of the fact, setting forth a
copy of the notice of the meeting and showing that said notice was
given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall
be conclusive evidence of the matters therein stated.
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
UNITED INVESTORS REALTY TRUST
By:___________________________
Name:_________________________
Title:________________________
Attest:
Name:_________________________________
Title:________________________________
------------------------------,
as Trustee
By:___________________________
Name:_________________________
Title:________________________
Attest:
Name:_________________________________
Title:________________________________
<PAGE>
STATE OF TEXAS )
) ss:
COUNTY OF HARRIS )
On the ___ day of ________ , 1999, before me personally came ____________,
to me known, who, being by me duly sworn, did depose and say that he/she resides
at ,_________________ , that he/she is _________________ of UNITED INVESTORS
REALTY TRUST, one of the parties described in and which executed the foregoing
instrument, and that he/she signed his/her name thereto by authority of the
Board of Trust Managers.
[Notarial Seal]
Notary Public
COMMISSION EXPIRES
STATE OF _________________ )
) ss:
COUNTY OF_________________ )
On the _____ day of__________, 1999, before me personally
came________________ , to me known, who, being by me duly sworn, did depose and
say that he/she resides at , that he/she is a _________________ of
___________________ , 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>
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 as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise UNITED INVESTORS REALTY TRUST or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] of such interest in
the above-captioned Securities in respect of which we are not able to certify
and as to which we understand an exchange for an interest in a Permanent Global
Security or an exchange for and delivery of definitive Securities (or, if
relevant, collection of any interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making
Certification]
(Authorized Signatory)
Name:
Title:
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] principal amount of
the above-captioned Securities (i) is owned by person(s) that are not citizens
or residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States person(s)"), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such financial institution has agreed, on its own behalf or through its
agent, that we may advise UNITED INVESTORS REALTY TRUST or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to
the further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated _______________ 19
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company
of New York, Brussels Office,] as
Operator of the Euroclear System
[CEDEL S.A.]
By:____________________________
<PAGE>
Exhibit 4.5
UNITED INVESTORS REALTY TRUST
TO
--------------------------------
Trustee
Indenture
Dated as of ___________, 1999
Subordinated Debt Securities
<PAGE>
TABLE OF CONTENTS
Page
PARTIES 1
RECITALS 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions 1
Acquired Debt 2
Act 2
Additional Amounts 2
Affiliate 2
Annual Service Charge 2
Authenticating Agent 2
Authorized Newspaper 2
Bankruptcy Law 3
Bearer Security 3
Board of Trust Managers 3
Board Resolution 3
Business Day 3
Capital Shares 3
CEDEL 3
Commission 3
Common Depositary 3
Common Shares 3
Company 4
Company Request and Company Order 4
Consolidated Income Available for Debt Service 4
Conversion Event 4
Corporate Trust Office 4
Corporation 4
Coupon 4
Custodian 4
Debt 4
Defaulted Interest 5
Disqualified Stock 5
Dollar or $ 5
ECU 5
Euroclear 5
European Communities 5
European Monetary System 5
Event of Default 5
Exchange Date 5
Foreign Currency 6
Funds from Operations 6
GAAP 6
Government Obligations 6
Holder 6
Indenture 6
Indexed Security 7
Interest 7
Interest Payment Date 7
Maturity 7
Officers' Certificate 7
Opinion of Counsel 7
Original Issue Discount Security 7
Outstanding 7
Paying Agent 9
Person 9
Place of Payment 9
Predecessor Security 9
Preferred Shares 9
Redemption Date 9
Redemption Price 9
Registered Security 9
Regular Record Date 9
Repayment Date 10
Representative 10
Responsible Officer 10
Security 10
Security Register and Security Registrar 10
Senior Debt 10
Significant Subsidiary 11
Special Record Date 11
Stated Maturity 11
Subsidiary 11
Total Assets 11
Trust Indenture Act or TIA 11
Trust Managers 11
Trustee 11
Undepreciated Real Estate Assets 12
Unencumbered Total Asset Value 12
United States 12
United States person 12
Yield to Maturity 12
SECTION 102. Compliance Certificates and Opinions 12
SECTION 103. Form of Documents Delivered to Trustee 13
SECTION 104. Acts of Holders 13
SECTION 105. Notices, etc., to Trustee and Company 15
SECTION 106. Notice to Holders; Waiver 16
SECTION 107. Effect of Headings and Table of
Contents 17
SECTION 108. Successors and Assigns 17
SECTION 109. Severability Clause 17
SECTION 110. Benefits of Indenture 17
SECTION 111. Governing Law 17
SECTION 112. Legal Holidays 17
SECTION 113. Immunity of Shareholders, Trust
Managers, Officers and Agents of
the Company 17
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities 18
SECTION 202. Form of Trustee's Certificate of
Authentication 18
SECTION 203. Securities Issuable in Global Form 19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series 20
SECTION 302. Denominations 24
SECTION 303. Execution, Authentication, Delivery
and Dating 24
SECTION 304. Temporary Securities 26
SECTION 305. Registration, Registration of Transfer
and Exchange 28
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities 32
SECTION 307. Payment of Interest; Interest
Rights Preserved 33
SECTION 308. Persons Deemed Owners 35
SECTION 309. Cancellation 36
SECTION 310. Computation of Interest 36
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of
Indenture 36
SECTION 402. Application of Trust Funds 38
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default 38
SECTION 502. Acceleration of Maturity; Rescission
and Annulment 40
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee 41
SECTION 504. Trustee May File Proofs of Claim 42
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons 43
SECTION 506. Application of Money Collected 43
SECTION 507. Limitation on Suits 43
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium, if any,
Interest and Additional Amounts 44
SECTION 509. Restoration of Rights and Remedies 44
SECTION 510. Rights and Remedies Cumulative 44
SECTION 511. Delay or Omission Not Waiver 45
SECTION 512. Control by Holders of Securities 45
SECTION 513. Waiver of Past Defaults 45
SECTION 514. Waiver of Usury, Stay or
Extension Laws 46
SECTION 515. Undertaking for Costs 46
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults 46
SECTION 602. Certain Rights of Trustee 47
SECTION 603. Not Responsible for Recitals or
Issuance of Securities 48
SECTION 604. May Hold Securities 48
SECTION 605. Money Held in Trust 49
SECTION 606. Compensation and Reimbursement 49
SECTION 607. Corporate Trustee Required;
Eligibility; Conflicting Interests 50
SECTION 608. Resignation and Removal;
Appointment of Successor 50
SECTION 609. Acceptance of Appointment by Successor 51
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business 52
SECTION 611. Appointment of Authenticating Agent 53
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of
Holders 54
SECTION 702. Reports by Trustee 55
SECTION 703. Reports by Company 55
SECTION 704. Company to Furnish Trustee Names and
Addresses of Holders 55
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company
and Sales, Leases and Conveyances
Permitted Subject to Certain
Conditions 55
SECTION 802. Rights and Duties of Successor
Corporation 56
SECTION 803. Officers' Certificate and Opinion of
Counsel 56
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without
Consent of Holders 57
SECTION 902. Supplemental Indentures with Consent
of Holders 58
SECTION 903. Execution of Supplemental Indentures 59
SECTION 904. Effect of Supplemental Indentures 60
SECTION 905. Conformity with Trust Indenture Act 60
SECTION 906. Reference in Securities to
Supplemental Indentures 60
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any,
Interest and Additional Amounts 60
SECTION 1002. Maintenance of Office or Agency 60
SECTION 1003. Money for Securities Payments to Be
Held in Trust 62
SECTION 1004. Existence 63
SECTION 1005. Payment of Taxes and Other Claims 64
SECTION 1006. Provision of Financial Information 64
SECTION 1007. Statement as to Compliance 64
SECTION 1008. Additional Amounts 64
SECTION 1009. Waiver of Certain Covenants 65
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article 66
SECTION 1102. Election to Redeem; Notice to Trustee 66
SECTION 1103. Selection by Trustee of Securities to
Be Redeemed 66
SECTION 1104. Notice of Redemption 66
SECTION 1105. Deposit of Redemption Price 68
SECTION 1106. Securities Payable on Redemption Date 68
SECTION 1107. Securities Redeemed in Part 69
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article 69
SECTION 1202. Satisfaction of Sinking
Fund Payments with Securities 70
SECTION 1203. Redemption of Securities for Sinking
Fund 70
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article 71
SECTION 1302. Repayment of Securities 71
SECTION 1303. Exercise of Option 71
SECTION 1304. When Securities Presented for
Repayment Become Due and Payable 72
SECTION 1305. Securities Repaid in Part 73
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article: Company's
Option to Effect Defeasance or
Covenant Defeasance 73
SECTION 1402. Defeasance and Discharge 73
SECTION 1403. Covenant Defeasance 74
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance 74
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions 76
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be
Called 77
SECTION 1502. Call, Notice and Place of Meetings 77
SECTION 1503. Persons Entitled to Vote at Meetings 78
SECTION 1504. Quorum; Action 78
SECTION 1505. Determination of Voting Rights;
Conduct and Adjournment of Meetings 79
SECTION 1506. Counting Votes and Recording Action
of Meetings 80
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Agreement to Subordinate 81
SECTION 1602. Liquidation; Dissolution; Bankruptcy 81
SECTION 1603. Default on Senior Debt 81
SECTION 1604. Acceleration of Securities 82
SECTION 1605. When Distribution Must be Paid Over 82
SECTION 1606. Notice by Company 82
SECTION 1607. Subrogation 82
SECTION 1608. Relative Rights 82
SECTION 1609. Subordination May Not Be Impaired by Company 83
SECTION 1610. Distribution or Notice to Representative 83
SECTION 1611. Rights of Trustee and Paying Agent 83
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
<PAGE>
UNITED INVESTORS REALTY TRUST
Reconciliation and tie between Trust Indenture Act
of 1939 (the "TIA") and Indenture dated as of
__________, 1999
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
Section 310(a)(1) 607
(a)(2) 607
(b) 607, 608
Section 312(a) 704
Section 312(c) 701
Section 313(a) 702
(c) 702
Section 314(a) 703
(a)(4) 1010
(c)(1) 102
(c)(2) 102
(e) 102
Section 315(b) 601
Section 316(a)(last sentence) 101 ("Outstanding")
(a)(1)(A) 512
(a)(1)(B) 513
(b) 508
Section 317(a)(1) 503
(a)(2) 504
Section 318(a) 111
(c) 111
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
TIA, which provides that the provisions of Sections 310 to and including 317 of
the TIA are a part of and govern every qualified indenture, whether or not
physically contained therein.
<PAGE>
INDENTURE, dated as of ____, 1999, by and between UNITED INVESTORS
REALTY TRUST, a real estate investment trust organized under the laws of the
State of Texas (hereinafter called the "Company"), having its principal office
at 5847 San Felipe, Suite 850, Houston, Texas 77057, and , as Trustee hereunder
(hereinafter called the "Trustee"), having its principal office at .
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes subordinated debt securities (the "Securities") evidencing its
unsecured and subordinated indebtedness, and has duly authorized the execution
and delivery of this Indenture to provide for the issuance from time to time of
the Securities, unlimited as to principal amount, to bear interest at the rates
or formulas, to mature at such times and to have such other provisions as shall
be fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended ("TIA"), that are deemed to be incorporated into this Indenture
and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the holders thereof ("Holders"), it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein, and the terms "cash transaction" and "self-liquidating
paper," as used in TIA Section 311, shall have the meanings assigned to
them in the rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP (as defined herein);
and
(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Acquired Debt" means Debt of a Person (i) existing at the time such Person
becomes a subsidiary or (ii) assumed in connection with the acquisition of
assets from such Person, in each case, other than Debt incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary (as defined
herein) or such acquisition. Acquired Debt shall be deemed to be incurred on the
date of the related acquisition of assets from any Person or the date the
acquired Person becomes a Subsidiary.
"Act," when used with respect to any Holder (as defined herein), 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 (as defined herein), under
circumstances specified therein, to be paid by the Company in respect of certain
taxes imposed on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Annual Service Charge" as of any date means the maximum amount which is
payable in any period for interest on, and original issue discount of, Debt of
the Company and its Subsidiaries and the amount of dividends which are payable
in respect of any Disqualified Stock (as defined herein).
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English language
or in an official language of the country of publication, customarily published
on each Business Day (as defined herein), whether or not published on Saturdays,
Sundays or holidays, and of general circulation in each place in connection with
which the term is used or in the financial community of each such place.
Whenever successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in different
Authorized Newspapers in the same city meeting the foregoing requirements and in
each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
"Board of Trust Managers" means the board of Trust Managers (as defined
herein) of the Company, the executive committee or any committee of that board
duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Trust Managers and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment (as defined
herein) or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in that Place of
Payment or particular location are authorized or required by law, regulation or
executive order to close.
"Capital Shares" means, with respect to any Person, any capital shares
(including preferred shares), interests, participations or other ownership
interests (however designated) of such Person and any rights (other than debt
securities convertible into or exchangeable for capital shares), warrants or
options to purchase any thereof.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the TIA, then the
body performing such duties on such date.
"Common Depositary" has the meaning specified in Section 304(b).
"Common Shares" means, with respect to any Person, Capital Shares issued by
such Person other than Preferred Shares.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by one Trust Manager and the
Company's Chairman of the Board, its Chief Executive Officer, its President or a
Vice President, its Treasurer, an Assistant Treasurer, its Controller or an
Assistant Controller, its Secretary, or an Assistant Secretary, and delivered to
the Trustee.
"Consolidated Income Available for Debt Service" for any period means Funds
from Operations (as defined herein) of the Company and its Subsidiaries plus
amounts which have been deducted for interest on Debt of the Company and its
Subsidiaries.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at 600 Travis, 8th Floor, Houston,
Texas 77002. For purposes of Sections 3.01 and 10.02 hereof, the Corporate Trust
Office shall also include its office, which at the date hereof is located at
1900 Pacific, 16th Floor, Dallas, Texas 75201 and the office of the Trustee's
agent located on the date of execution of the Indenture at 80 Broad Street, 4th
Floor, New York, New York, 10004.
"Corporation" includes corporations, associations, partnerships, companies
and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of the Company or any Subsidiary means any indebtedness of the
Company or any Subsidiary, other than contingent liabilities (except to the
extent set forth in (iii) below), in respect of (without duplication) (i)
borrowed money or evidenced by bonds, notes, debentures or similar instruments,
(ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or
any security interest existing on property owned by the Company or any
Subsidiary, (iii) the reimbursement obligations, contingent or otherwise, in
connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations or obligations under any title
retention agreement, (iv) the principal amount of all obligations of the Company
or any Subsidiary with respect to redemption, repayment or other repurchase of
any Disqualified Stock or (v) any lease of property by the Company or any
Subsidiary as lessee which is reflected on the Company's consolidated balance
sheet as a capitalized lease in accordance with GAAP to the extent, in the case
of items of indebtedness under (i) through (iii) above, that any such items
(other than letters of credit) would appear as a liability on the Company's
consolidated balance sheet in accordance with GAAP, but does not include any
obligation of the Company or any Subsidiary to be liable for, or to pay, as
obligor, guarantor or otherwise, Debt of another Person (other than the Company
or any Subsidiary) unless and until the Company or such Subsidiary shall become
directly liable in respect thereof).
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" means, with respect to any Person, any Capital Shares
of such Person which by the terms of such Capital Shares (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, (ii)
is convertible into or exchangeable or exercisable for Debt or Disqualified
Stock or (iii) is redeemable at the option of the Holder thereof, in whole or in
part, in each case on or prior to the Stated Maturity (as defined herein) of the
Securities.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Date" has the meaning specified in Section 304(b).
"Foreign Currency" means any currency, currency unit or composite currency,
including, without limitation, the ECU issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such governments.
"Funds from Operations" for any period means net income plus depreciation,
amortization and extraordinary charges excluding gains and losses on sales of
its properties and securities.
"GAAP" means generally accepted accounting principles, as in effect from
time to time, as used in the United States applied on a consistent basis.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the Foreign
Currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America or such government which issued the foreign
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of a Registered Security, the Person in whose
name a Security is registered in the Security Register (as defined herein) and,
in the case of a Bearer Security, the bearer thereof and, when used with respect
to any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established as contemplated
by Section 301; provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument, "Indenture" shall mean, with respect to
any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity (as defined herein) 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
(as defined herein) which by its terms bears interest only after Maturity (as
defined herein), shall mean interest payable after Maturity, and, when used with
respect to a Security which provides for the payment of Additional Amounts
pursuant to Section 1011, includes such Additional Amounts.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by a Trust Manager and
an executive officer of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company or who may be an employee of or other counsel for the Company
and who shall be satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (as defined herein) (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities
and any coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article Fourteen;
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(v) Securities converted into Common Shares or Preferred Shares
(as defined herein) pursuant to or in accordance with this Indenture
if the terms of such Securities provide for convertibility pursuant to
Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Company, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities or coupons on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of or within
any series, means the place or places where the principal of (and premium, if
any) and interest on such Securities are payable as specified as contemplated by
Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Preferred Shares" means, with respect to any Person, Capital Shares issued
by such Person that are entitled to a preference or priority over any other
capital shares issued by such Person upon any distribution of such Person's
assets, whether by dividend or upon liquidation.
"Redemption Date," when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" shall mean any Security which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of or within any series means the date specified
for that purpose as contemplated by Section 301, whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security to be repaid
at the option of the Holder, the date fixed for such repayment by or pursuant to
this Indenture.
"Representative" means the indenture trustee or other trustee, agent or
representative for an issue of Senior Debt.
"Responsible Officer," when used with respect to the Trustee, means the
Chairman or Vice-Chairman of the Board of Directors, the Chairman or
Vice-Chairman of the executive committee of the Board of Directors, the
President, any Vice President (whether or not designated by a number or a word
or words added before or after the title "Vice President"), the Secretary, any
Assistant Secretary, the Treasurer, any Assistant Treasurer, any Corporate Trust
Officer, the Controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of such officer's
knowledge and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated and
delivered under this Indenture; provided, however, that, if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Debt" means the principal of and interest on, or substantially
similar payments to be made by the Company in respect of, the following, whether
outstanding at the date of execution of this Indenture or thereafter incurred,
created or assumed: (a) indebtedness of the Company for money borrowed or
represented by purchase-money obligations, (b) indebtedness of the Company
evidenced by notes, debentures, or bonds, or other securities issued under the
provisions of an indenture, fiscal agency agreement or other instrument, (c)
obligations of the Company as lessee under leases of property either made as
part of any sale and lease-back transaction to which the Company is a party or
otherwise, (d) indebtedness of partnerships and joint ventures which is included
in the Company's consolidated financial statements, (e) indebtedness,
obligations and liabilities of others in respect of which the Company is liable
contingently or otherwise to pay or advance money or property or as guarantor,
endorser or otherwise or which the Company has agreed to purchase or otherwise
acquire, and (f) any binding commitment of the Company to fund any real estate
investment or to fund any investment in any entity making such real estate
investment; but excluding, however, (l) any such indebtedness, obligation or
liability referred to in clauses (a) through (f) above as to which, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such indebtedness, obligation or liability is
not superior in right of payment to the Securities, or ranks pari passu with the
Securities, (2) any such indebtedness, obligation or liability which is
subordinated to indebtedness of the Company to substantially the same extent as
or to a greater extent than the Securities are subordinated and (3) the
Securities. As used in the preceding sentence the term "purchase-money
obligations" shall mean indebtedness or obligations evidenced by a note,
debenture, bond or other instrument (whether or not secured by any lien or other
security interest but excluding indebtedness or obligations for which recourse
is limited to the property purchased) issued or assumed as all or a part of the
consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise, but shall not include any trade accounts payable. A
distribution may consist of cash, securities or other property.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act of 1933, as amended) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable. "Subsidiary" means a corporation a
majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries of the Company.
For the purposes of this definition, "voting stock" means stock having voting
power for the election of directors, whether at all times or only so long as no
senior class of stock has such voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) the Company's
Undepreciated Real Estate Assets (as defined herein) and (ii) all other assets
of the Company determined in accordance with GAAP (but excluding goodwill and
unamortized debt costs).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended, and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trust Managers" means the individuals comprising the Board of Trust
Managers of the Company.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder; provided, however, that if
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean only the Trustee with respect to
Securities of that series.
"Undepreciated Real Estate Assets" as of any date means the cost (original
cost plus capital improvements) of real estate assets of the Company and its
Subsidiaries on such date, before depreciation and amortization determined on a
consolidated basis in accordance with GAAP.
"Unencumbered Total Asset Value" means as of any date the sum of the
Company's Total Assets which are unencumbered by any mortgage, lien, charge,
pledge or security interest.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (including certificates delivered
pursuant to Section 1010) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person
may certify or give an opinion as to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders. (1) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in
and evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by agents duly appointed in writing. If
Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of Securities of
such series may, alternatively, be embodied in and evidenced by the record
of Holders of Securities of such series voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders
of Securities of such series duly called and held in accordance with the
provisions of Article Fifteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or
both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument
or instruments or so voting at any such meeting. Proof of execution of any
such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture. The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 1506.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to him
the execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be proved in
any other reasonable manner which the Trustee deems sufficient.
(3) The ownership of Registered Securities shall be proved by the
Security Register.
(4) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by the Trustee
to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the
Bearer Securities therein described; or such facts may be proved by
the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee
to be satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the
same Bearer Security is produced, or (2) such Bearer Security is
produced to the Trustee by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or (4)
such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee
deems sufficient.
(5) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, in or
pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but
the Company shall have no obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall be the record date specified in
or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith and not later than the date
such solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall
be deemed to be Holders for the purposes of determining whether
Holders of the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and
for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this
Indenture not later than eleven months after the record date.
In the absence of any such record date fixed by the Company, regardless as
to whether a solicitation of the Holders is occurring on behalf of the Company
or any Holder, the Trustee may, at its option, fix in advance a record date for
the determination of such Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Trustee
shall have no obligation to do so. Any such record date shall be a date not more
than 30 days prior to the first solicitation of Holders generally in connection
therewith no later than the date of such solicitation.
(6) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee, any Security Registrar,
any Paying Agent, any Authenticating Agent or the Company in reliance
thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at 600 Travis, Houston, Texas
77002; or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture
provides for notice of any event to Holders of Registered Securities
by the Company or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to
Holders of Registered Securities is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency
of any notice to Holders of Bearer Securities given as provided
herein. Any notice mailed to a 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 or waiver required or
permitted under this Indenture shall be in the English language, except that any
published notice may be in an official language of the country of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements
in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 109. Severability Clause. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture or
in the Securities or coupons, express or implied, shall give to any
Person, other than the parties hereto, any Security Registrar, any
Paying Agent, any Authenticating Agent and their successors hereunder
and the Holders any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 111. Governing Law. This Indenture and the Securities and
coupons shall be governed by and construed in accordance with the law
of the State of New York. This Indenture is subject to the provisions
of the TIA that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment
date, Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or any Security or coupon other than a
provision in the Securities of any series which specifically states
that such provision shall apply in lieu hereof), payment of interest
or any Additional Amounts or principal (and premium, if any) need not
be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date, Redemption
Date, Repayment Date or sinking fund payment date, or at the Stated
Maturity or Maturity, provided that no interest shall accrue on the
amount so payable for the period from and after such Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date,
Stated Maturity or Maturity, as the case may be.
SECTION 113. Immunity of Shareholders, Trust Managers, Officers
and Agents of the Company. In accordance with Article Fifteen of the
Amended and Restated Declaration of Trust of the Company ("Declaration
of Trust"), the Trustee recognizes and agrees that the obligations of
the Company under the Indenture and the Securities and all documents
delivered in the name of the Company in connection herewith and
therewith do not and shall not constitute personal obligations of the
Trust Managers, officers, employees, agents or shareholders of the
Company or any of them, and shall not involve any claim against or
personal liability on the part of any of them, and that all persons
including the Trustee shall look solely to the assets of the Company
for the payment of any claim thereunder or for the performance thereof
and shall not seek recourse against such Trust Managers, officers,
employees, agents or shareholders of the Company or any of them or any
of their personal assets for such satisfaction. The performance of the
obligations of the Company under the Indenture and the Securities and
all documents delivered in the name of the Company in connection
therewith shall not be deemed a waiver of any rights or powers of the
Company, Trust Managers or shareholders under the Declaration of
Trust.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if
any, of each series and the Bearer Securities, if any, of each series
and related coupons shall be in substantially the forms as shall be
established in one or more indentures supplemental hereto or approved
from time to time by or pursuant to a Board Resolution in accordance
with Section 301, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by
this Indenture or any indenture supplemental hereto, and may have such
letters, numbers or other marks of identification or designation and
such legends or endorsements placed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
_________________________________, as Trustee
By: __________________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of
or within a series are issuable in global form, as specified as
contemplated by Section 301, then, notwithstanding clause (8) of
Section 301 and the provisions of Section 302, any such Security shall
represent such of the Outstanding Securities of such series as shall
be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities of such series from time to
time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be
increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or
decrease in the amount, of Outstanding Securities represented thereby
shall be made by the Trustee in such manner and upon instructions
given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section
303 or 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions
given by the Person or Persons specified therein or in the applicable
Company Order. If a Company Order pursuant to Section 303 or 304 has
been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in
global form shall be in writing but need not comply with Section 102
and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of and any premium and
interest on any Security in permanent global form shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent global
Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (15) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 304, 305, 306, 906, 1107
or 1305);
(3) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities of the
series shall be payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall
be determined, the date or dates from which such interest shall accrue
or the method by which such date or dates shall be determined, the
Interest Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the method by
which such date shall be determined, and the basis upon which interest
shall be calculated if other than that of a 360 day year of twelve 30
day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, New York City, where the principal of (and
premium, if any), interest, if any, on, and Additional Amounts, if
any, payable in respect of, Securities of the series shall be payable,
any Registered Securities of the series may be surrendered for
registration of transfer, exchange or conversion and notices or
demands to or upon the Company in respect of the Securities of the
series and this Indenture may be served;
(6) the period or periods within which, the price or prices at
which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon
which Securities of the series may be redeemed, in whole or in part,
at the option of the Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the
price or prices at which, the currency or currencies, currency unit or
units or composite currency or currencies in which, and other terms
and conditions upon which Securities of the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities
of the series shall be issuable and, if other than the denomination of
$5,000, and in any integral multiple thereof, the denomination or
denominations in which any Bearer Securities of the series shall be
issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or, if applicable, the portion of the principal amount of
Securities of the series that is convertible in accordance with the
provisions of this Indenture, or the method by which such portion
shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium, if any) or interest or
Additional Amounts, if any, on the Securities of the series shall be
payable or in which the Securities of the series shall be denominated;
(12) whether the amount of payments of principal of (and premium,
if any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or
more currencies, currency units, composite currencies, commodities,
equity indices or other indices), and the manner in which such amounts
shall be determined;
(13) whether the principal of (and premium, if any) or interest
or Additional Amounts, if any, on the Securities of the series are to
be payable, at the election of the Company or a Holder thereof, in a
currency or currencies, currency unit or units or composite currency
or currencies other than that in which such Securities are denominated
or stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made, and the
time and manner of, and identity of the exchange rate agent with
responsibility for, determining the exchange rate between the currency
or currencies, currency unit or units or composite currency or
currencies in which such Securities are denominated or stated to be
payable and the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are to be so
payable;
(14) provisions, if any, granting special rights to the Holders
of Securities of the series upon the occurrence of such events as may
be specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and
vice versa (if permitted by applicable laws and regulations), whether
any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and
of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than
in the manner provided in Section 305, and, if Registered Securities
of the series are to be issuable as a global Security, the identity of
the depositary for such series;
(17) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of
the series shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest,
the manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to
the Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(21) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1011 on the Securities
of the series to any Holder who is not a United States person
(including any modification to the definition of such term) in respect
of any tax, assessment or governmental charge and, if so, whether the
Company will have the option to redeem such Securities rather than pay
such Additional Amounts (and the terms of any such option);
(22) the obligation, if any, of the Company to permit the
conversion of the Securities of such series into the Company's Common
Shares or Preferred Shares, as the case may be, and the terms and
conditions upon which such conversion shall be effected (including,
without limitation, the initial conversion price or rate, the
conversion period, any adjustment of the applicable conversion price
and any requirements relative to the reservation of such shares for
purposes of conversion); and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the Securities
of such series.
SECTION 302. Denominations. The Securities of each series shall
be issuable in such denominations as shall be specified as
contemplated by Section 301. With respect to Securities of any series
denominated in Dollars, in the absence of any such provisions with
respect to the Securities of any series, the Registered Securities of
such series, other than Registered Securities issued in global form
(which may be of any denomination), shall be issuable in denominations
of $1,000 and any integral multiple thereof and the Bearer Securities
of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in denominations
of $5,000, and in any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating. The
Securities and any coupons appertaining thereto shall be executed on
behalf of the Company by a Trust Manager and its Chairman, its Chief
Executive Officer, its President, its Treasurer or one of its Vice
Presidents and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these individuals on the
Securities and coupons may be manual or facsimile signatures of the
present or any future such authorized officer and trustee and may be
imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
unless otherwise specified with respect to any series of Securities pursuant to
Section 301, a Bearer Security may be delivered in connection with its original
issuance only if the Person entitled to receive such Bearer Security shall have
furnished a certificate to Euroclear or CEDEL, as the case may be, in the form
set forth in Exhibit A-1 to this Indenture or such other certificate as may be
specified with respect to any series of Securities pursuant to Section 301,
dated no earlier than 15 days prior to the earlier of the date on which such
Bearer Security is delivered and the date on which any temporary Security first
becomes exchangeable for such Bearer Security in accordance with the terms of
such temporary Security and this Indenture. If any Security shall be represented
by a permanent global Bearer Security, then, for purposes of this Section and
Section 304, the notation of a beneficial owner's interest therein upon original
issuance of such Security or upon exchange of a portion of a temporary global
Security shall be deemed to be delivery in connection with its original issuance
of such beneficial owner's interest in such permanent global Security. Except as
permitted by Section 306, the Trustee or the Authenticating Agent shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled.
If all of the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such series shall
so permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate or formula, maturity date, date
of issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Sections 315(a) through 315(d)) shall be fully protected in
relying upon:
(1) an Opinion of Counsel stating that:
(a) the form or forms of such Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed
and delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by
the Trustee in accordance with this Indenture and issued by the
Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights
generally and to general equitable principles; and
(2) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
the Securities have been complied with and that, to the best of the
knowledge of the signers of such certificate, no Event of Default with
respect to any of the Securities shall have occurred and be
continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or a Company Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
or Security to which such coupon appertains a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of an authorized signatory, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities. (1) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are
issued, in registered form, or, if authorized, in bearer form with one
or more coupons or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities. In the case of
Securities of any series, such temporary Securities may be in global
form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 304(2) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further,
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
(2) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(2) 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 Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, or its agent, as the Company's agent for such
purpose, to be exchanged, in whole or, from time to time, in part, for
definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 301,
and, if any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, unless otherwise specified in such
temporary global Security, upon such presentation by the Common Depositary, such
temporary global Security is accompanied by a certificate dated the Exchange
Date or a subsequent date and signed by Euroclear as to the portion of such
temporary global Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by CEDEL as
to the portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in
such other form as may be established pursuant to Section 301; and provided
further, that, definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary global Security only in compliance with the requirements
of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
CEDEL, as the case may be, to request such exchange on his behalf and delivers
to Euroclear or CEDEL, as the case may be, a certificate in the form set forth
in Exhibit A-1 to this Indenture (or in such other form as may be established
pursuant to Section 301), dated no earlier than 15 days prior to the Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(2) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary global Security will be
made unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company in a Place of
Payment a register for each series of Securities (the registers
maintained in such office or in any such office or agency of the
Company in a Place of Payment being herein sometimes referred to
collectively as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form
or any other form capable of being converted into written form within
a reasonable time. The Trustee, at its Corporate Trust Office, is
hereby appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities on such
Security Register as herein provided. In the event that the Trustee
shall cease to be Security Registrar, it shall have the right to
examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the Holder,
Registered Securities of any series may be exchanged for other Registered
Securities of the same series, of any authorized denomination or denominations
and of a like aggregate principal amount, containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at any
such office or agency. Whenever any such Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 301, Bearer Securities may not
be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and (subject
to Section 303) set forth in the applicable Officers' Certificate, or in any
indenture supplemental hereto, delivered as contemplated by Section 301, at the
option of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require, in their sole discretion, to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole, but not in part,
only to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to
DTC for such global Security selected or approved by the Company or to a nominee
of such successor to DTC. If at any time DTC notifies the Company that it is
unwilling or unable to continue as depositary for the applicable global Security
or Securities or if at any time DTC ceases to be a clearing agency registered
under the Securities Exchange Act of 1934 if so required by applicable law or
regulation, the Company shall appoint a successor depositary with respect to
such global Security or Securities. If (x) a successor depositary for such
global Security or Securities is not appointed by the Company within 90 days
after the Company receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (y) an Event of Default has occurred and is
continuing and the beneficial owners representing a majority in principal amount
of the applicable series of Securities represented by such global Security or
Securities advise DTC to cease acting as depositary for such global Security or
Securities or (z) the Company, in its sole discretion, determines at any time
that all Outstanding Securities (but not less than all) of any series issued or
issuable in the form of one or more global Securities shall no longer be
represented by such global Security or Securities, then the Company shall
execute, and the Trustee shall authenticate and deliver definitive Securities of
like series, rank, tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such global Security or Securities. If
any beneficial owner of an interest in a permanent global Security is otherwise
entitled to exchange such interest for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable notice
provided in the permanent global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Company shall execute, and the Trustee
shall authenticate and deliver definitive Securities in aggregate principal
amount equal to the principal amount of such beneficial owner's interest in such
permanent global Security. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be surrendered for
exchange by DTC or such other depositary as shall be specified in the Company
Order with respect thereto to the Trustee, as the Company's agent for such
purpose; provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
to be redeemed and ending on the relevant Redemption Date, if the Security for
which exchange is requested may be among those selected for redemption. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, Interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 304, 906, 1107 or 1305 not involving any
transfer.
The Company or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may be
among those selected for redemption during a period beginning at the opening of
business 15 days before selection of the Securities to be redeemed under Section
1103 and ending at the close of business on (A) if such Securities are issuable
only as Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If
any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Company,
together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them or any
agent of either of them harmless, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and principal amount, containing identical
terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any,
appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium, if any),
any interest on and any Additional Amounts with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto. Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, interest on any
Registered Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest at the office or agency of the Company maintained for
such purpose pursuant to Section 1002; provided, however, that each
installment of interest on any Registered Security may at the
Company's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto
pursuant to Section 308, to the address of such Person as it appears
on the Security Register or (ii) transfer to an account maintained by
the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case may be,
with respect to that portion of such permanent global Security held for its
account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities
of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 30 days after such
notice is received by the Trustee), and at the same time the
Company shall deposit with the Trustee an amount of money in the
currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301
for the Securities of such series) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not
more than 15 days and not less then 10 days prior to the date of
the proposed payment and not less than 15 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first class postage
prepaid, to each Holder of Registered Securities of such series
at his address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. The Company may,
in its discretion, direct the Trustee to publish in the name and
at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper in each Place
of Payment, but such publications shall not be a condition
precedent to the establishment of such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). In case a Bearer
Security of any series is surrendered at the office or agency in
a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such
office or agency on any Special Record Date and before the
opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest will not be
payable on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture; or
(2) The Company may make payment of any Defaulted Interest
on the Registered Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Registered Security is registered as the
owner of such Security for the purpose of receiving payment of
principal of (and premium, if any), and (subject to Sections 305 and
307) interest on, such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder of any Bearer Security and the Holder of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with respect to such
global Security or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as
Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons surrendered
for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking
fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities and
coupons and Securities and coupons surrendered directly to the Trustee
for any such Purpose shall be promptly cancelled by it; provided,
however, where the Place of Payment is located outside of the United
States, the Paying Agent at such Place of Payment may cancel the
Securities surrendered to it for such purposes prior to delivering the
Securities to the Trustee. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
unauthenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the
Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless
and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Cancelled Securities and coupons held by
the Trustee shall be destroyed by the Trustee and the Trustee shall
deliver a certificate of such destruction to the Company, unless by a
Company Order the Company directs their return to it.
SECTION 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of
any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year consisting of twelve 30-day
months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series herein expressly provided for
and any right to receive Additional Amounts, as provided in Section
1011), and the Trustee, upon receipt of a Company Order, and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section
305, (ii) Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment
money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are
to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose an amount in
the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of
such series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, and any
Additional Amounts with respect thereto, to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money deposited
with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities,
the coupons and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any), and any interest and
Additional Amounts for whose payment such money has been deposited
with or received by the Trustee, but such money need not be segregated
from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever used
herein with respect to any particular series of Securities, means any
one of the following events (whatever the reason for such Event of
Default and whether or not it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of that
series or of any coupon appertaining thereto, when such interest,
Additional Amounts or coupon becomes due and payable, and
continuance of such default for a Period of 30 days;
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series when it becomes due and
payable at its Maturity;
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of any Security of that series;
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture with respect to any
Security of that series (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of
Default" hereunder;
(5) default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company
(including obligations under leases required to be capitalized on
the balance sheet of the lessee under generally accepted
accounting principles, but not including any indebtedness or
obligations for which recourse is limited to property purchased)
in an aggregate principal amount in excess of $____________ or
under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company (including such
leases but not including such indebtedness or obligations for
which recourse is limited to property purchased) in an aggregate
principal amount in excess of $_____________ by the Company,
whether such indebtedness now exists or shall hereafter be
created, which default shall have resulted in such indebtedness
becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable or such
obligations being accelerated, without such acceleration having
been rescinded or annulled;
(6) the Company or any Significant Subsidiary, pursuant to
or within the meaning of any Bankruptcy Law (a) becomes
insolvent, (b) fails generally to pay its debts as they become
due, (c) admists in writing its inability to pay its debts
generally as they become due, (d) commences a voluntary case or
proceeding, (e) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding,
(f) consents to the appointment of a Custodian of it or for any
part of its property, (g) consents to or acquiesces in the
institution of bankruptcy or insolvency against it, (h) applies
for, consents to or acquiesces in the appointment of or taking
possession by a Custodian of the Company or any benefit of its
creditors, or (j) takes any corporate action in furtherance of or
to facilitate, conditionally or otherwise, any of the foregoing;
(7) a court of competent jurisdiction enters a judgment,
decree or order for relief in respect of the Company or any
Signifcant Subsidiary in an involuntary case or proceeding under
any Bankruptcy Law which shall (a) order the winding-up or
liquidation of its affairs; (b)(1) approve as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition in respect of the Company or Subsidiary or (2)
appoint a Custodian of the Company or any Significant Subsidiary
or for any part of its property and such judgment or decree shall
remain unstayed and in effect for a period of 30 consecutive
days; or (c) any bankruptcy or insolvency petition or application
is filed, or any bankruptcy or insolvency proceeding is
commenced, against the Company or any Significant Subsidiary and
such petition, application or proceeding is not dismissed within
60 days; or any warrant of attachment is issued against any
portion of the property of the Company or any Significant
Subsidiary which is not released within 60 days of service; or
(8) any other Event of Default provided with respect to
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S. Code
or any similar Federal or State law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(6) or (7)) with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series may declare the principal
(or, if any Securities are Original Issue Discount Securities or
Indexed Securities, such portion of the principal as may be specified
in the terms thereof) of all the Securities of that series to be due
and payable immediately, by a notice in writing to the Company (and to
the Trustee it given by the Holders), and upon any such declaration
such principal or specified portion thereof shall become immediately
due and payable; provided, however, that if such Event of Default
shall occur pursuant to Section 501(6) or Section 501(7) hereof, such
acceleration shall be automatic and shall occur without notice.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency or currency unit or composite
currency in which the Securities of such series are payable
(except as otherwise specified Pursuant to Section 301 for the
Securities of such series):
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Outstanding
Securities of that series and any related coupons;
(B) the principal of (and premium, if any, on) any
Outstanding Securities of that series which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates borne by or provided for
in such Securities;
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest and any
Additional Amounts at the rate or rates borne by or provided
for in such Securities; and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or
premium, if any) or interest on Securities of that series which
have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of
interest or Additional Amounts, if any, on any Security of any
series and any related coupon when such interest or Additional
Amount becomes due and payable and such default continues for a
period of 30 days; or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest and Additional Amounts, with interest upon any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of interest
or Additional Amounts, if any, at the rate or rates borne by or provided for in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities of such series and
collect the monies adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities
of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of
the Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment
of overdue principal, premium, if any, or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such
series, of principal (and premium, if any) and interest and
Additional Amounts, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding;
and
(ii) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the
same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this
Indenture or any of the Securities or coupons may be prosecuted and
enforced by the Trustee without the possession of any of the
Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the
Holders of the Securities and coupons in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected. Any money collected
by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in
case of the distribution of such money on account of principal (or
premium, if any) or interest and any Additional Amounts, upon
presentation of the Securities or coupons, or both, as the case may
be, and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities and coupons for principal (and premium, if
any) and interest and any Additional Amounts payable, in respect,
of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the aggregate amounts due and payable on such
Securities and coupons for principal (and premium, if any),
interest and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company.
SECTION 507. Limitation on Suits. No Holder of any Security of
any series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee, in its sole
discretion, against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium, if any, Interest and Additional Amounts. Notwithstanding any
other provision in this Indenture, the Holder of any Security or
coupon shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject
to Sections 305 and 307) interest on, and any Additional Amounts in
respect of, such Security or payment of such coupon on the respective
due dates expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee
or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in
every such case, the Company, the Trustee and the Holders of
Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding
had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders of Securities or coupons, as the case
may be.
SECTION 512. Control by Holders of Securities. The Holders of not
less than a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction; and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders
of Securities of such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such
series and any related coupons waive any past default hereunder with
respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any)
or interest on or Additional Amounts payable in respect of any
Security of such series or any related coupons; or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in
such suit of any undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding
Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or
interest on any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after
the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of
any series, the Trustee shall transmit in the manner and to the extent
provided in TIA Section 313(c), notice of such default hereunder known
to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on or any
Additional Amounts with respect to any Security of such series, or in
the payment of any sinking fund installment with respect to the
Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is
in the interests of the Holders of the Securities and coupons of such
series; and provided further that in the ease of any default or breach
of the character specified in Section 501(4) with respect to the
Securities and coupons of such series, no such notice to Holders shall
be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is,
or after notice or lapse of time or both would become, an Event of
Default with respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions
of TIA Section 315(a) --------------------------- through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other
paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Security, together with any
coupons appertaining there to, to the Trustee for authentication
and delivery pursuant to Section 303 which shall be sufficiently
evidenced as provided therein) and any resolution of the Board of
Trust Managers may be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any
series or any related coupons pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other
paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to
make reasonable examination of the books, records and premises of
the Company, personally or by agent or attorney following
reasonable notice to the Company;
(7) the Trustee may execute any of the trusts or Powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any willful misconduct or negligence on the part
of any agent or attorney appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed
by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture; and
(9) for all purposes under this Indenture, subject to the
provisions of Sections 601 and 602, the Trustee shall not be
deemed to have notice or knowledge of any default or Event of
Default (other than under Section 501(1), (2) or (3)) unless a
Responsible Officer assigned to and working in the Trustee's
Corporate Trust Office has actual knowledge thereof or unless
written notice of any default or Event of Default is received by
the Trustee at the Corporate Trust Office and such notice refers
to the Securities generally, the Company or this Indenture;
(10) 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
its rights or power, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities,
except the Trustee's certificate of authentication, and in any coupons
shall be taken as the statements of the Company, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for
their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities or
coupons, except that the Trustee represents that it is duly authorized
to execute and deliver this Indenture, authenticate the Securities and
perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner
or pledgee of Securities and coupons and, subject to TIA Sections
310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 606. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of in express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon
its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may
be attributable to its negligence or willful misconduct; and
(3) to indemnify each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or willful misconduct on
its own part, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any
of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest on
particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests. There shall at all times be a Trustee hereunder which shall
be eligible to act as Trustee under TIA Section 310(a)(1) and shall
have a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant
to law or the requirements of Federal, State, Territorial or District
of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof
to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(3) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series
delivered to the Trustee and to the Company.
(4) If at any time:
(A) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request
therefor by the Company or by any Holder of a Security who
has been a bona fide Holder of a Security for at least six
months;
(B) the Trustee shall cease to be eligible under
Section 608 and shall fail to resign after written request
therefor by the Company or by any Holder of a Security who
has been a bona fide Holder of a Security for at least six
months; or
(C) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect
to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to
the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the
Company or the Holders of Securities and accepted appointment in
the manner hereinafter provided, any Holder of a Security who has
been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of
such series.
(6) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect
to the Securities of any series 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. (1) In case
of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges,
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.
(2) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not
all) series, the Company, the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto,
pursuant to Article Nine hereof, wherein each successor Trustee
shall accept such appointment and which (A) shall contain such
provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (B) if the
retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and
(C) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor
Trustee relates.
(3) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(4) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 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 ally time
when any of the Securities remain Outstanding, the Trustee may appoint
an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon
exchange, registration of transfer or partial redemption or repayment
thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company
and shall at all times be a bank or trust company or corporation
organized and doing business and in good standing wider the laws of
the United States of America or of any State or the District of
Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authorities.
If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. In case at any time
an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner end with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign
by giving written notice of resignation to the Trustee for such series and to
the Company. The Trustee for any series of Securities may at any time terminate
the agency of an Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
By:_______________________________,
as Trustee
By:_______________________________,
as Authenticating Agent
By:_______________________________,
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every
Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any Authenticating Agent nor any Paying Agent nor any
Security Registrar shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the
Holders of Securities in accordance with TIA Section 312, regardless
of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after __________
of each year commencing with the first ____________ after the first
issuance of Securities pursuant to this Indenture, the Trustee shall
transmit by mail to all Holders of Securities as provided in TIA
Section 313(c) a brief report dated as of such ___________ if required
by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time
by such rules and regulations; and
(2) transmit by mail to the Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and
to the extent provided in TIA Section 313(c), such summaries of
any information, documents and reports required to be filed by
the Company pursuant to Section 1006 and paragraph (1) of this
Section as may be required by rules and regulations prescribed
from time to time by the Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the
Trustee:
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list,
in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Registered Securities of such
series as of such Regular Record Date, or if there is no Regular
Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such
series; and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished,
provided, however, that, so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions. The
Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other
corporation, provided that in any such case, (1) either the Company
shall be the continuing corporation, or the successor corporation
shall be a corporation organized and existing under the laws of the
United States or a State thereof and such successor corporation shall
expressly assume the due and punctual payment of the principal of (and
premium, if any) and any interest (including all Additional Amounts,
if any, payable pursuant to Section 1011) on all of the Securities,
according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to
be performed by the Company by supplemental indenture, complying with
Article Nine hereof, satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation and (2) immediately after
giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Company or any Subsidiary as a result
thereof as having been incurred by the Company or such Subsidiary at
the time of such transaction, no Event of Default, and no event which,
after notice or the lapse of time, or both, would become an Event of
Default, shall have occurred and be continuing.
SECTION 802. Rights and Duties of Successor Corporation. In case
of any such consolidation, merger, sale, lease or conveyance and upon
any such assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein as the party of the
first part, and the predecessor corporation, except in the event of a
lease, shall be relieved of any further obligation under this
Indenture and the Securities. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Securities issuable hereunder
which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor
corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously
shall have been signed and delivered by the officers of the Company to
the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so
issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though all of
such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under
Section 801 is also subject to the condition that the Trustee receive
an Officers' Certificate and an Opinion of Counsel to the effect that
any such consolidation, merger, sale, lease or conveyance, and the
assumption by any successor corporation, complies with the provisions
of this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants
of the Company herein and in the Securities contained;
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company;
(3) to add any additional Events of Default 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;
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the
payment of principal of or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange
for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided that any such action
shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect;
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall
become effective only when there is no Security Outstanding of
any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provisions;
(6) to secure the Securities;
(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and
301, including the provisions and procedures relating to
Securities convertible into Common Shares or Preferred Shares, as
the case may be;
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee;
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture
which shall not be inconsistent with the provisions of this
Indenture, provided such provisions shall not adversely affect
the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall
not adversely affect the interests of the Holders of Securities
of such series and any related coupons or any other series of
Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such
supplemental indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by or pursuant
to a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights
of the Holders of Securities and any related coupons under this
Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Security
affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount thereof
or the rate or amount of interest thereon or Additional Amounts
payable in respect thereof, or any premium payable upon the
redemption thereof, or change any obligation of the Company to
pay Additional Amounts pursuant to Section 1008 (except as
contemplated by Section 801(1) and permitted by Section 901(1)),
or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the amount thereof provable in bankruptcy pursuant
to Section 504, or adversely affect any right of repayment at the
option of the Holder of any Security, or change any Place of
Payment where, or the currency or currencies, currency unit or
units or composite currency or currencies in which, any Security
or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or after
the Redemption Date or the Repayment Date, as the case may be);
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver with respect
to such series (or compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting; or
(3) modify any of the provisions of this Section, Section
513 or Section 1012, except to increase the required percentage
to effect such action or to provide that certain other provisions
of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected
thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In executing,
or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the
trusts created by this Indenture, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may,
and shall, if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Securities of any series so modified as to conform, in the opinion of
the Trustee and the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, Interest and
Additional Amounts. The Company covenants and agrees for the benefit
of the Holders of each series of Securities that it will duly and
punctually pay the principal of (and premium, if any) and interest on
and any Additional Amounts payable in respect of the Securities of
that series in accordance with the terms of such series of Securities,
any coupons appertaining thereto and this Indenture. Unless otherwise
specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on and any Additional Amounts payable in
respect of Bearer Securities on or before Maturity, other than
Additional Amounts, if any, payable as provided in Section 1011 in
respect of principal of (or premium, if any, on) such a Security,
shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as
they severally mature. Unless otherwise specified with respect to
Securities of any series pursuant to Section 301, at the option of the
Company, all payments of principal may be paid by check to the
registered Holder of the Registered Security or other person entitled
thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities of a
series are issuable only as Registered Securities, the Company shall
maintain in each Place of Payment for any series of Securities an
office or agency where Securities of that series may be presented or
surrendered for payment or conversion, where Securities of that series
may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company
will maintain: (A) in the Borough of Manhattan, New York City, an
office or agency where any Registered Securities of that series may be
presented or surrendered for payment or conversion, where any
Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be
surrendered for exchange, where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture
may be served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment or conversion in
the circumstances described in the following paragraph (and not
otherwise); (B) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and
related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of
that series pursuant to Section 1008) or conversion; provided,
however, that if the Securities of that series are listed on the
Luxembourg Stock Exchange or any other stock exchange located outside
the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series
in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series
are listed on such exchange; and (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of each such
office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series
and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer
Securities of that series pursuant to Section 1008) or conversion at
the offices specified in the Security, in London, England, and the
Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the
Company hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States; provided, however, that, if the Securities of a series are payable in
Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any Additional Amounts payable on Securities of such series
pursuant to Section 1008) shall be made at the office of the designated agent of
the Company's Paying Agent in the Borough of Manhattan, New York City, if (but
only if) payment in Dollars of the full amount of such principal, premium,
interest or Additional Amounts, as the case may be, at all offices or agencies
outside the United States maintained for the purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities pursuant to Section 301 with respect to a series of Securities,
the Company hereby designates as a Place of Payment for each series of
Securities the office or agency of the Company in the Borough of Manhattan, New
York City, and initially appoints the Trustee at its Corporate Trust Office as
Paying Agent and as its agent to receive all such presentations, surrenders, and
notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of any Securities and any related coupons, it
will, on or before each due date of the principal of (and premium, if
any), or interest on or Additional Amounts in respect of, any of the
Securities of that series, segregate and hold in trust for the benefit
of the Persons entitled there to a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series)
sufficient to pay the principal (and premium, if any) or interest or
Additional Amounts so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities and any related coupons, it will, before each due date of the
principal of (and premium, if any), or interest on or Additional Amounts in
respect of, any Securities of that series, deposit with a Paying Agent a sum (in
the currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the principal
(and premium, if any) or interest or Additional Amounts, so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest or Additional Amounts and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will
(1) hold all sums held by it for the payment of principal of
(and premium, if any) or interest on Securities or Additional
Amounts in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities) in the making of any
such payment of principal (and premium, if any) or interest or
Additional Amounts; and
(3) at any time during the continuance of any such default
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further Liability with respect to such
sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on,
or any Additional Amounts in respect of, any Security of any series and
remaining unclaimed for two years after such principal (and premium, if any),
interest of Additional Amounts have become due and payable shall be paid to the
Company upon Company Request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment of such
principal of (and premium, if any) or interest on, or any Additional Amounts in
respect of, any Security, without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Existence. Subject to Article Eight, the Company
will do or cause to be done all things necessary to preserve and keep
in full force and effect its existence, rights and franchises;
provided, however, that the Company shall not be required to preserve
any right or franchise if the Board of Trust Managers shall determine
that the preservation thereof is no longer desirable in the conduct of
the business of the Company.
SECTION 1005. Payment of Taxes and Other Claims. The Company will
pay or discharge or cause to be paid or discharged, before the same
shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required
to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is
being contested in good faith.
SECTION 1006. Provision of Financial Information. Whether or not
the Company is subject to Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company will prepare the annual reports,
quarterly reports and other documents within 15 days of each of the
respective dates by which the Company would have been required to file
with the Commission pursuant to such Section 13 or 15(d) and will (i)
transmit by mail to all Holders, as their names and addresses appear
in the Security Register, without cost to such Holders copies of the
annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 if the
Company were subject to such Sections, (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents
which the Company would have been required to file with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
if the Company were subject to such Sections and (iii) promptly upon
written request and payment of the reasonable cost of duplication and
delivery, supply copies of such documents to any prospective Holder.
SECTION 1007. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal
year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his
or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture and, in the event of any noncompliance,
specifying such noncompliance and the nature and status thereof. For
purposes of this Section 1007, such compliance shall be determined
without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1008. Additional Amounts. If any Securities of a series
provide for the payment of Additional Amounts, the Company will pay to
the Holder of any Security of such series or any coupon appertaining
thereto Additional Amounts as may be specified as contemplated by
Section 301. Whenever in this Indenture there is mentioned, in any
context except in the case of Section 502(1), the payment of the
principal of or any premium or interest on, or in respect of, any
Security of any series or payment of any related coupon or the net
proceeds received on the sale or exchange of any Security of any
series, such mention shall be deemed to include mention of the payment
of Additional Amounts provided by the terms of such series established
pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. In the event that the Trustee or any Paying Agent, as the
case may be, shall not so receive the above-mentioned certificate, then the
Trustee or such Paying Agent shall be entitled (i) to assume that no such
withholding or deduction is required with respect to any payment of principal or
interest with respect to any Securities of a series or related coupons until it
shall have received a certificate advising otherwise and (ii) to make all
payments of principal and interest with respect to the Securities of a series or
related coupons without withholding or deductions until otherwise advised. The
Company covenants to indemnify the Trustee and any Paying Agent for, and to hold
them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the Company's
not furnishing such an Officers' Certificate.
SECTION 1009. Waiver of Certain Covenants. The Company may omit
in any particular instance to comply with any term, provision or
condition set forth in Sections 1004 to 1009, inclusive, if before or
after the time for such compliance the Holders of at least a majority
in principal amount of all outstanding Securities of such series, by
Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition
except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the
Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series
which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election
of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the
election of the Company of less than all of the Securities of any
series, the Company shall, at least 45 days prior to the giving of the
notice of redemption in Section 1104 (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities of such
series to be redeemed. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided
in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with all 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 election for redemption
of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the
principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that
series.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be
given in the manner provided in Section 106, not less than 30 days nor
more than 60 days prior to the Redemption Date, unless a shorter
period is specified by the terms of such series established pursuant
to Section 301, to each Holder of Securities to be redeemed, but
failure to give such notice in the manner herein provided to the
Holder of any Security designated for redemption as a whole or in
part, or any defect in the notice to any such Holder, shall not affect
the validity of the proceedings for the redemption of any other such
Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the Redemption
Date payable as provided in Section 1106, if any, and Additional
Amounts, if any;
(3) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of
partial redemption, the principal amount) of the particular
Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the
holder will receive, without a charge, a new Security or
Securities of authorized denominations for the principal amount
thereof remaining unredeemed;
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in
Section 1106, if any, will become due and payable upon each such
Security, or the Portion thereof, to be redeemed and, if
applicable, that interest thereon shall cease to accrue on and
after said date;
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date,
are to be surrendered for payment of the Redemption Price and
accrued interest, if any, or for conversion;
(7) that the redemption is for a sinking fund, if such is
the case;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must
be accompanied by all coupons maturing subsequent to the date
fixed for redemption or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price, unless
security or indemnity satisfactory to the Company, the Trustee
for such series and any Paying Agent is furnished;
(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on this
Redemption Date pursuant to Section 305 or otherwise, the last
date, as determined by the Company, on which such exchanges may
be made;
(10) the CUSIP number of such Security, if any; and
(11) if applicable, that a Holder of Securities who desires
to convert Securities for redemption must satisfy the
requirements for conversion contained in such Securities, the
then existing conversion price or rate, and the date and time
when the option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price. On any Redemption
Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it
may not do in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series) sufficient to pay on the
Redemption Date the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the
Securities or portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currencies,
currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except is otherwise
specified pursuant to Section 301 for the Securities of such series)
(together with accrued interest, if any, to the Redemption Date), and
from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to heir interest and
the coupons for such interest appertaining to any Bearer Securities so
to be redeemed, except to the extent provided below, shall be void.
Upon surrender of any such Security for redemption in accordance with
said notice, together with all coupons, if any, appertaining thereto
maturing after the Redemption Date, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or prior to
the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of coupons for such
interest; and provided further that, except as otherwise provided with
respect to Securities convertible into Common Shares or Preferred
Shares, installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security without service charge a new Security
or Securities of the same series, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security
so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated
by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of such Securities of any series is herein referred to as an "optional
sinking fund payment". It provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. The Company may, in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of a
series, (1) deliver Outstanding Securities of such series (other than
any previously called for redemption) together in the case of any
Bearer Securities of such series with all unmatured coupons
appertaining thereto and (2) apply as a credit Securities of such
series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, as provided for by the terms of such Securities, or which
have otherwise been acquired by the Company; provided that such
Securities so delivered or applied as a credit have not been
previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the applicable Redemption Price
specified in such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment
shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less
than 60 days prior to each sinking fund payment date for Securities of
any series, the Company will deliver to the Trustee in Officers'
Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be satisfied by
payment of cash in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series) and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund
payment, and will also deliver to the Trustee any Securities to be so
delivered and credited. If such Officers' Certificate shall specify an
optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay
the amount therein specified. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given,
the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities
of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities,
if any, and (except as otherwise specified by the terms of such series
established pursuant to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series
subject to repayment in whole or in part it the option of the Holders
thereof will, unless otherwise provided in the terms of such
Securities, be repaid at a price equal to the principal amount
thereof, together with interest, if any, thereon accrued to the
Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that at least one Business Day prior
to the Repayment Date it will deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series) sufficient to pay the principal
(or, if so provided by the terms of the Securities of any series, a
percentage of the principal) of, and (except if the Repayment Date
shall be in Interest Payment Date) accrued interest on, all the
Securities or portions thereof, as the case may be, to be repaid on
such date.
SECTION 1303. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will contain
an "Option to Elect Repayment" form on the reverse of such Securities.
In order for any Security to be repaid at the option of the Holder,
the Trustee must receive at the Place of Payment therefor specified in
the terms of such Security (or at such other place or places of which
the Company shall from time to time notify the Holders of such
Securities) not earlier than 60 days nor later than 30 days prior to
the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse
thereof duly completed by the Holder (or by the Holder's attorney duly
authorized in writing) or (2) a telegram, telex, facsimile
transmission or a Letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc.
("NASD"), or a commercial bank or trust company in the United States
setting forth the name of the Holder of the Security, the principal
amount of the Security, the principal amount of the Security to be
repaid, the CUSIP number, if any, or a description of the tenor and
terms of the Security, a statement that the option to elect repayment
is being exercised thereby and a guarantee that the Security to be
repaid, together with the duly completed form entitled "Option to
Elect Repayment" on the reverse of the Security, will be received by
the Trustee not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter; provided,
however, that such telegram, telex, facsimile transmission or letter
shall only be effective if such Security and form duly completed are
received by the Trustee by such fifth Business Day. If less than the
entire principal amount of such Security is to be repaid in accordance
with the terms of such Security, the principal amount of such Security
to be repaid, in increments of the minimum denomination for Securities
of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security
providing for repayment, at the option of the Holder thereof may not
be repaid in part if, following such repayment, the unpaid principal
amount of such Security would be less than the minimum authorized
denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise maybe provided by the terms of
any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable. If Securities of any series providing for repayment at
the option of the Holders thereof shall have been surrendered as
provided in this Article and as provided by or pursuant to the terms
of such Securities, such Securities or the portions thereof, as the
case may be, to be repaid shall become due and payable and shall be
paid by the Company on the Repayment Date therein specified, and on
and after such Repayment Date (unless the Company shall default in the
payment of such Securities on such Repayment Date) such Securities
shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so
to be repaid, except to the extent provided below, shall be void. Upon
surrender of any such Security for repayment in accordance with such
provisions, together with all coupons, if any, appertaining thereto
maturing after the Repayment Date, the principal amount of such
Security so to be repaid shall be paid by the Company, together with
accrued interest, if any, to the Repayment Date; provided, however,
that coupons whose Stated Maturity is on or prior to the Repayment
Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and,
unless otherwise specified pursuant to Section 301, only upon
presentation and surrender of such coupons; and provided further that,
in the case of Registered Securities, installments of interest, if
any, whose Stated Maturity is on or prior to the Repayment Date shall
be payable (but without interest thereon, unless the Company shall
default in the payment thereof) to the Holders of such Securities, or
one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1302 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment shall not
be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge and at the expense of
the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an
aggregate principal amount equal to and in exchange for the portion of
the principal of such Security so surrendered which is not to be
repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301,
provision is made for either or both of (a) defeasance of the
Securities of or within a series under Section 1402 or (b) covenant
defeasance of the Securities of or within a series under Section 1403,
then the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article (with such
modifications thereto as may be specified pursuant to Section 301 with
respect to any Securities), shall be applicable to such Securities and
any coupons appertaining thereto, and the Company may at its option by
Board Resolution, at any time, with respect to such Securities and any
coupons appertaining thereto, elect to have Section 1402 (if
applicable) or Section 1403 (if applicable) be applied to such
Outstanding Securities and any coupons appertaining thereto upon
compliance with the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect
to any Securities of or within a series, the Company shall be deemed
to have been discharged from its obligations with respect to such
Outstanding Securities and any coupons appertaining thereto on the
date the conditions set forth in Section 1404 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Outstanding Securities and any
coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other
Sections of this Indenture referred to in clauses (A) and (B) below,
and to have satisfied all of its other obligations under such
Securities and any coupons appertaining thereto and this Indenture
insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities
and any coupons appertaining thereto to receive, solely from the trust
fund described in Section 1404 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any)
and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 305, 306, 1002 and 1003 and
with respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Section 1008, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article Fourteen, the Company
may exercise its option under this Section notwithstanding the prior
exercise of its option under Section 1403 with respect to such
Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise of
the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be released from
its obligations under Sections 1004 to 1009, inclusive, and, if
specified pursuant to Section 301, its obligations under any other
covenant, with respect to such Outstanding Securities and any coupons
appertaining thereto on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "covenant defeasance"), and
such Securities and any coupons appertaining thereto shall thereafter
be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences
of any thereof) in connection with Sections 1004 to 1009, inclusive,
or such other covenant, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities and
any coupons appertaining thereto, the Company may omit to comply with
and shall have no liability in respect of any term, condition or
limitations set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of
reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply
shall not constitute a default or an Event of Default under Section
501(4) or 501(8) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities
and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402
or Section 1403 to any Outstanding Securities of or within a series
and any coupons appertaining thereto:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying
the requirements o(pound) Section 608 who shall agree to comply
with the provisions of this Article Fourteen applicable to it) as
trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities and any
coupons appertaining thereto, (A) 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 (B) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on the
basis of the currency, currencies or currency unit in which such
Securities and coupons appertaining thereto are then specified as
payable at Stated Maturity) which through the scheduled payment
of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due
date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any coupons appertaining
thereto, money in an amount, or (C) a combination thereof, in any
case, in an amount, sufficient, without consideration of any
reinvestment of such principal and interest, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i)
the principal of (and premium, if any) and interest, if any, on
such Outstanding Securities and any coupons appertaining thereto
on the Stated Maturity of such principal or installment of
principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding
Securities and any coupons appertaining thereto on the day on
which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities and any coupons
appertaining thereto;
(2) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which
the Company is a party or by which it is bound;
(3) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to
such Securities and any coupons appertaining thereto shall have
occurred and be continuing on the date of such deposit or,
insofar as Sections 501(6) and 501(7) are concerned, at any time
during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(4) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii)
since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm
that, the Holder of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and
will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if
such defeasance had not occurred;
(5) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of such Outstanding Securities and
any coupons appertaining thereto will not recognize income, gain
or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not
occurred;
(6) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent to the defeasance under Section
1402 or the covenant defeasance under Section 1403 (as the case
may be) have been complied with and an Opinion of Counsel to the
effect that either (i) as a result of a deposit pursuant to
subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of
1940, as amended, by the Company, with respect to the trust funds
representing such deposit or by the Trustee for such trust funds
or (ii) all necessary registrations under said Act have been
effected; and
(7) Notwithstanding any other provisions of this Section,
such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection
therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the
provisions of the last paragraph of Section 1003, all money and
Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of
this Section 1405, the "Trustee") pursuant to Section 1404 in respect
of any Outstanding Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any
coupons appertaining thereto and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities and any coupons appertaining thereto of all
sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such
money need not be segregated from other funds except to the extent
required by law.
Unless otherwise specified with respect to any Security pursuant to Section
301, if, after a deposit referred to in Section 1404(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 301 or the terms of such Security to receive
payment in a currency or currency unit other than that in which the deposit
pursuant to Section 1404(a) has been made in respect, of such Security, or (b) a
Conversion Event occurs in respect of the currency or currency unit in which the
deposit pursuant to Section 1404(a) his been made, the indebtedness represented
by such Security and any coupons appertaining thereto shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any), and interest, if any, on such Security as
the same becomes due out of the proceeds yielded by converting (from time to
time as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the currency or currency
unit in which such Security becomes payable as a result of such election or
Conversion Event based on the applicable market exchange rate for such currency
or currency unit in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such currency or currency
unit in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 607, the Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or Government Obligations (or other property and
any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or
taken by Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings. (1) The Trustee
may at any time call a meeting of Holders of Securities of any series
for any purpose specified in section 1501, to be held at such time and
at such place in the Borough of Manhattan, New York City, or in London
as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not
less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(2) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of
the Outstanding Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to
cause the meeting to be held is provided herein, then the Company
or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, New York City, or in London
for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (1) of this
Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument
in writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons
who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series
shall constitute a quorum for a meeting of Holders of Securities of
such series; provided, however, that if any action is to be taken at
such meeting with respect to a consent or waiver which this Indenture
expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities
of a series, the Persons entitled to vote such specified percentage in
principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period
of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum
at the reconvening of any such adjourned meeting, such adjourned
meeting may be further adjourned for a period of not less than 10
days; at the reconvening of any meeting adjourned or further adjourned
for lack of a quorum, the persons entitled to vote 25% in the
aggregate principal amount of the Securities at the time outstanding
shall constitute a quorum for the taking of any action set forth in
the notice of the original meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(a),
except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be
reconvened.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities
represented at such meeting; provided, however, that, except as limited by the
provisons to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action
shall be taken into account in determining whether such request,
demand, authorization, direction, notice, consent, waiver or
other action has been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings. (1) 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.
(2) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders of Securities as
provided in Section 1502(2), in which case the Company or the
Holders of Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall
be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series
represented at the meeting.
(3) At any meeting each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or
represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged
as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right
to vote, except as a Holder of a Security of such series or
proxy.
(4) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may
be adjourned from time to time by Persons entitled to vote a
majority in principal amount of the Outstanding Securities of
such series represented at the meeting, and the meeting may be
held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series
or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities of such series held or
represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities
of any Series shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more persons having knowledge of the fact, setting forth a
copy of the notice of the meeting and showing that said notice was
given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one such copy
shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall
be conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Agreement to Subordinate. The Company agrees, and
each Holder by accepting a Security agrees, that the indebtedness
evidenced by the Securities is subordinated in right of payment, to
the extent and in the manner provided in this Article, to the prior
payment in full of all Senior Debt and that the subordination is for
the benefit of the holders of Senior Debt.
SECTION 1602. Liquidation; Dissolution; Bankruptcy. Upon any
distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company
or its property:
(l) holders of Senior Debt shall be entitled to receive
payment in full in cash of the principal of and interest
(including interest accruing after the commencement of any such
proceeding) to the date of payment on the Senior Debt before
Holders shall be entitled to receive any payment of principal of
or interest on Securities;
(2) until the Senior Debt is paid in full in cash, any
distribution to which Holders would be entitled but for this
Article shall be made to holders of Senior Debt as their
interests may appear, except that Holders may receive securities
that are subordinated to Senior Debt to at least the same extent
as the Securities; and
(3) the Trustee is entitled to rely upon an order or decree
of a court of competent jurisdiction or a certificate of a
bankruptcy trustee or other similar official for the purpose of
ascertaining the persons entitled to participate in such
distribution, the holders of Senior Debt and other Company debt,
the amount thereof or payable thereon and all other pertinent
facts relating to the Trustee's obligations under this Article
Sixteen.
SECTION 1603. Default on Senior Debt. The Company may not pay
principal or interest on the Securities and may not acquire any
Securities for cash or property other than capital shares of the
Company if:
(1) a default on Senior Debt occurs and is continuing that
permits holders of such Senior Debt to accelerate its maturity;
and
(2) the default is the subject of judicial proceedings or
the Company receives a notice of the default from a person who
may give it pursuant to Section 1611. If the Company receives any
such notice, a similar notice received within nine months
thereafter relating to the same default on the same issue of
Senior Debt shall not be effective for purposes of this Section.
The Company may resume payments on the Securities and may acquire
them when:
(a) the default is cured or waived; or
(b) 120 days pass after the notice is given if the
default is not the subject of judicial proceedings,
if this Article otherwise permits the payment or acquisition at that time.
SECTION 1604. Acceleration of Securities. If payment of the
Securities is accelerated because of an Event of Default, the Company
shall promptly notify holders of Senior Debt of the acceleration. The
Company may pay the Securities when 120 days pass after the
acceleration occurs if this Article permits the payment at that time.
SECTION 1605. When Distribution Must Be Paid Over. If a
distribution is made to Holders that because of this Article should
not have been made to them, the Holders who receive the distribution
shall hold it in trust for holders of Senior Debt and pay it over to
them as their interests may appear.
SECTION 1606. Notice by Company. The Company shall promptly
notify the Trustee and any Paying Agent of any facts known to the
Company that would cause a payment of principal of or interest on
Securities to violate this Article.
SECTION 1607. Subrogation. After all Senior Debt is paid in full
and until the Securities are paid in full, Holders shall be subrogated
to the rights of holders of Senior Debt to receive distributions
applicable to Senior Debt to the extent that distributions otherwise
payable to the Holders have been applied to the payment of Senior
Debt. A distribution made under this Article to holders of Senior Debt
which otherwise would have been made to Holders is not, as between the
Company and Holders, a payment by the Company on Senior Debt.
SECTION 1608. Relative Rights. This Article defines the relative
rights of Holders and holders of Senior Debt. Nothing in this
Indenture shall:
(1) impair, as between the Company and Holders, the
obligation of the Company, which is absolute and unconditional,
to pay principal of and interest on the Securities in accordance
with their terms;
(2) affect the relative rights of Holders and creditors of
the Company other than holders of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon an Event of Default, subject to the
rights of holders of Senior Debt to receive distributions
otherwise payable to Holders.
If the Company fails because of this Article to pay principal of or
interest on a Security on the due date, the failure is still a default.
SECTION 1609. Subordination May Not Be Impaired by Company. No
right of any holder of Senior Debt to enforce the subordination of the
indebtedness evidenced by the Securities shall be impaired by any act
or failure to act by the Company or by its failure to comply with this
Indenture.
SECTION 1610. Distribution or Notice to Representative. Whenever
a distribution is to be made or a notice given to holders of Senior
Debt, the distribution may be made and the notice given to their
Representative.
SECTION 1611. Rights of Trustee and Paying Agent. The Trustee or
any Paying Agent may continue to make payments on the Securities until
it receives written notice of facts that would cause a payment of
principal of or interest on the Securities to violate this Article.
Only the Company, a Representative or a holder of an issue of Senior
Debt that has no Representative may give the written notice.
The Trustee has no fiduciary duty to the holders of Senior Debt
other than as created under this Indenture. The Trustee in its
individual or any other capacity may hold Senior Debt with the same
rights it would have if it were not Trustee.
The Company's obligation to pay, and the Company's payment of,
the Trustee's fees pursuant to Section 606 are excluded from the
operation of this Article Sixteen.
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all
such counterparts shall together constitute but one and the same
Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
UNITED INVESTORS REALTY TRUST
By:________________________________
Name:______________________________
Title:_____________________________
Attest:
By:_____________________________
Name:___________________________
Title:__________________________
------------------------------------,
as Trustee
By:________________________________
Name:______________________________
Title:_____________________________
Attest:
By:_____________________________
Name:___________________________
Title:__________________________
<PAGE>
STATE OF TEXAS )
) ss:
COUNTY OF HARRIS )
On the ______ day of ____________, 1999, before me personally came , to me
known, who, being by me duly sworn, did depose and say that he/she resides at
______________________, ______________________, that he/she is
_____________________ of UNITED INVESTORS REALTY TRUST, one of the parties
described in and which executed the foregoing instrument, and that he/she signed
his/her name thereto by authority of the Board of Trust Managers.
[Notarial Seal]
Notary Public
COMMISSION EXPIRES
STATE OF )
) ss:
COUNTY OF )
On the ____ day of ______, 1999, before me personally came , to me known,
who, being by me duly sworn, did depose and say that he/she resides at
__________________,that he/she is a __________________ of _____________________,
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>
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 as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise UNITED INVESTORS REALTY TRUST or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] _____ of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:___________________, 19 [To be dated no earlier than the 15th day prior to
(i) the Exchange Date or (ii) the relevant Interest Payment Date occurring prior
to the Exchange Date, as applicable]
[Name of Person Making
Certification]
(Authorized Signatory)
Name:___________________________
Title:__________________________
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] ____principal amount
of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise UNITED INVESTORS REALTY
TRUST or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated ________________________, 19 [To be dated no earlier than the Exchange
Date or the relevant Interest Payment Date occurring prior to the Exchange Date,
as applicable]
[Morgan Guaranty Trust Company
of New York, Brussels Office,]
as Operator of the Euroclear System
[CEDEL S.A.]
By:
<PAGE>
Exhibit 5.1
[Locke Liddell & Sapp LLP Letterhead]
April 5, 1999
United Investors Realty Trust
5847 San Felipe, Suite 850
Houston, Texas 77057
Re: $100,000,000 Aggregate Offering Price of Securities of United Investors
Realty Trust
Gentlemen:
We are acting as securities counsel to United Investors Realty Trust, a
Texas real estate investment trust (the "Company"), in connection with the
registration statement on Form S-3 (the "Registration Statement") being filed by
you with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"), relating to the offering from
time to time pursuant to Rule 415 under the Act, as set in the prospectus
contained in the Registration Statement (the "Prospectus") and as to be set
forth in one or more supplements to the Prospectus (each a "Prospectus
Supplement"), by the Company of up to $100,000,000 aggregate offering price of
(i) common shares of beneficial interest, no par value (the "Common Shares"),
(ii) one or more series of preferred shares of beneficial interest, no par value
(the "Preferred Shares"), (iii) one or more series of senior or subordinated
debt securities (the "Debt Securities"), (iv) warrants to purchase Debt
Securities, Preferred Shares or Common Shares (referred to herein collectively
as the "Securities Warrants"), and/or (v) rights to purchase Preferred Shares or
Common Shares (referred to herein collectively as the "Rights"). The Common
Shares, Preferred Shares, Debt Securities, Securities Warrants and Rights are
collectively referred to as the "Securities."
In our capacity as your counsel in connection with such registration,
we have made such legal and factual examinations and inquiries, including an
examination of originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as we have deemed necessary or advisable in
connection with this opinion, including (a) the First Amended and Restated
Declaration of Trust of the Company and the First Amended and Restated Bylaws of
the Company, each as amended to date, and (b) the Registration Statement. In our
examination, we have assumed the genuineness of all signatures, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies, the authenticity of the originals of such
copies and the authenticity of telegraphic or telephonic confirmations of public
officials and others. As to facts material to our opinion, we have relied upon
certificates or telegraphic or telephonic confirmations of public officials and
certificates, documents, statements and other information of the Company or
representatives or officers thereof.
The opinions set forth below address the effect on the subject
transaction only of the federal laws of the United States and the internal laws
of the State of Texas, and we express no opinion with respect to the
applicability thereto, or the effect thereon, of the laws of any other
jurisdiction.
Subject to the foregoing and the other matters set forth herein, it is
our opinion that, as of the date hereof:
1. The registration of the Common Shares has been duly authorized, and
upon issuance, delivery and payment therefor in the manner contemplated by
the Registration Statement and the applicable Prospectus Supplement, and in
accordance with the applicable definitive purchase, underwriting or similar
agreement approved by the Board, the Common Shares will be duly authorized,
validly issued, fully paid and nonassessable;
2. The registration of the Preferred Shares has been duly authorized
by the Company, and when the Preferred Shares have been duly established in
accordance with the terms of the Company's Statement of Designation
defining the rights and preferences of the Preferred Shares, and applicable
law, and, upon issuance, delivery and payment therefor in the manner
contemplated by the Registration Statement and the applicable Prospectus
Supplement, and in accordance with the applicable definitive purchase,
underwriting or similar agreements approved by the Board, the Preferred
Shares will be duly authorized, validly issued, fully paid and
nonassessable;
3. The registration of the Debt Securities has been duly authorized by
the Company, and when the Debt Securities have been duly established by the
applicable Indenture, duly authenticated by the Trustee and duly executed
and delivered on behalf of the Company against payment therefor in
accordance with the terms and provisions of the applicable Indenture and as
contemplated by the Registration Statement and the applicable Prospectus
Supplement, and in accordance with the applicable definitive purchase,
underwriting or similar agreement approved by the Board of Trust Managers
(the "Board"), the Debt Securities will constitute legally valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms;
4. The registration of the Securities Warrants has been duly
authorized by the Company, and when the final terms thereof have been duly
established, and when duly executed and delivered by the Company and
countersigned by the applicable financial institution identified as the
warrant agent (the "Warrant Agent") in accordance with the applicable
warrant agreement (the "Warrant Agreement") and delivered to and paid for
by the purchasers thereof in the manner contemplated by the Registration
Statement and the applicable Prospectus Supplement, and in accordance with
the applicable definitive purchase, underwriting or similar agreement
approved by the Board, the Securities Warrants will constitute legally
valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms; and
5. The registration of the Rights has been duly authorized by the
Company, and when the final terms thereof have been duly established, and
when duly executed and delivered by the Company and countersigned by the
applicable financial institution as the rights agent (the "Rights Agent")
in accordance with applicable rights agreement (the "Rights Agreement") and
delivered to and paid for by the purchasers thereof in the manner
contemplated by the Prospectus Supplement, and in accordance with the
applicable definitive purchase, underwriting or similar agreement approved
by the Board, the Rights will constitute legally valid and binding
obligations of the Company, enforceable against the Company in accordance
with their respective terms.
The opinions set forth above are subject to the following exceptions,
limitations and qualifications: (i) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting the rights and remedies of creditors; (ii) the effect
of general principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court before which any
proceeding therefor may be brought; (iii) the unenforceability under certain
circumstances under law or court decisions of provisions providing for the
indemnification of or contribution to a party with respect to a liability where
such indemnification or contribution is contrary to public policy; (iv) we
express no opinion concerning the enforceability of the waiver of rights or
defenses contained in Section 514 of the Indenture; and (v) we express no
opinion with respect to whether acceleration of Debt Securities may affect the
collectibility of any portion of the stated principal amount thereof which might
be determined to constitute unearned interest thereon.
To the extent that the obligations of the Company under each Warrant
Agreement may be dependent upon such matters, we assume for the purposes of this
opinion that the Warrant Agent is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that the Warrant
Agent is duly qualified to engage in the activities contemplated by the Warrant
Agreement; that the Warrant Agreement has been duly authorized, executed and
delivered by the Warrant Agent and constitutes the legally valid and binding
obligation of the Warrant Agent enforceable against the Warrant Agent in
accordance with its terms; that the Warrant Agent is in compliance, generally
with respect to acting as a Warrant Agent under the Warrant Agreement, with all
applicable laws and regulations; and that the Warrant Agent has the requisite
organizational and legal power and authority to perform its obligations under
the Warrant Agreement.
To the extent that the obligations of the Company under each Rights
Agreement may be dependent upon such matters, we assume for purposes of this
opinion that the Rights Agent is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that the Rights
Agent is duly qualified to engage in the activities contemplated by the Right
Agreement; that the Rights Agreement has been duly authorized, executed and
delivered by the Rights Agent and constitutes the legally valid and binding
obligation of the Rights Agent enforceable against the Rights Agent in
accordance with its terms; that the Rights Agent is in compliance, generally
with respect to acting as a Rights Agent under the Rights Agreement, with all
applicable laws and regulations; and that the Rights Agent has the requisite
organizational and legal power and authority to perform its obligations under
the Rights Agreement.
For the purposes of this opinion, we have assumed that (i) the
Registration Statement, and any amendments thereto (including post-effective
amendments), will have become effective, (ii) a Prospectus Supplement will have
been prepared and filed with the Commission describing the Securities offered
thereby, (iii) all Securities will be issued and sold in compliance with
applicable federal and state securities laws and in the manner stated in the
Registration Statement and the appropriate Prospectus Supplement, and (iv) a
definitive purchase, underwriting or similar agreement with respect to any
Securities offered will have been duly authorized and validity executed and
delivered by the Company and the other parties thereto.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Opinions" in the prospectus included therein.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to, or relied upon by
any other person, firm or corporation for any purpose, without prior written
consent.
Very truly yours,
/s/ Locke Liddell & Sapp LLP
-------------------------------
LOCKE LIDDELL & SAPP LLP
<PAGE>
Exhibit 8.1
_________, 1999
United Investors Realty Trust
5847 San Felipe, Suite 850
Houston, Texas 77057
Ladies and Gentlemen:
We have acted as counsel to United Investors Realty Trust (the
"Trust"), a Texas real estate investment trust, in connection with the
Registration Statement on Form S-3 dated April 5, 1999 (the "Registration
Statement") filed with the Securities and Exchange Commission in connection with
registration under the Securities Act of 1933, as amended. We have been asked to
provide an opinion on certain federal income tax matters related to the Trust.
Capitalized terms used in this letter and not otherwise defined herein have the
meaning set forth in the Registration Statement an the accompanying prospectus.
The opinions set forth in this letter are based on relevant provisions
of the Internal Revenue Code of 1986, as amended (the "Code"), Treasury
Regulations promulgated thereunder (including proposed and temporary
Regulations), and interpretations of the foregoing as expressed in court
decisions, the legislative history and existing administrative rulings and
practices of the Internal Revenue Service ("IRS") (including its practices and
policies in issuing private letter rulings, which are not binding on the IRS
except with respect to a taxpayer that receives such a ruling), all as of the
date hereof. These provisions and interpretations are subject to change, which
may or may not be retroactive in effect, that might result in modifications of
our opinion.
In rendering the following opinion, we have examined such statutes,
regulations, records, certificates and other documents as we have considered
necessary or appropriate as a basis for such opinion, including the following:
(1) the Registration Statement and the accompanying prospectus; (2) the First
Amended and Restated Declaration of Trust and the First Amended and Restated
Bylaws of the Trust as amended to date (collectively, the "Charter"); and (3) a
written tax representation letter of the Trust executed by an officer of the
Trust, dated on or about the date hereof (the "Officer's Certificate")
In our review, we have assumed, with your consent, that all of the
representations and statements set forth in the documents we reviewed are true
and correct, and all of the obligations imposed under such documents, including,
without limitation, the Charter, have been and will be performed or satisfied in
accordance with their terms. In connection with rendering the opinion herein, we
have also assumed (without any independent investigation or review thereof) that
all actions described in the Registration Statement and the accompanying
prospectus will be consummated as described therein (including satisfaction of
all covenants and conditions to the obligations of the parties without amendment
or waiver thereof) and completed in a timely fashion and that the Trust will
comply with all reporting obligations required under the Code, and the Treasury
Regulations thereunder.
For purposes of rendering our opinion, we have not made an independent
investigation or audit of any of the facts set forth in any of the documents we
have examined, including the Registration Statement and the Officer's
Certificate or with regard to the assumptions set forth above. Consequently, we
have relied upon your representations and have assumed that the information
presented in such documents or otherwise furnished to us accurately and
completely describes all material facts relevant to our opinions.
Any inaccuracy in, or breach of, any of the aforementioned statements,
representations, warranties and assumptions or any change after the date hereof
in applicable law could adversely affect our opinion. No ruling has been (or
will be) sought from the IRS by the Trust as to the federal income tax matters
addressed in this opinion.
Based upon our examination of the foregoing items and subject to and
limited by the assumptions, exceptions, limitations and qualifications set forth
herein, we are of the opinion that the Trust has qualified as a REIT for federal
income tax purposes for the taxable year ended December 31, 1998 and the form of
organization of the Trust, its operations through the date hereof and its
proposed operations for future periods, are such as to enable it to continue to
satisfy the requirements for qualification as a REIT for federal income tax
purposes in subsequent taxable years provided that in each such year the Trust
meets the applicable asset composition, source of income, shareholder
diversification, distribution, recordkeeping and other requirements of the Code
necessary for the Trust to qualify as a REIT; and the information in the
Registration Statement and the accompanying prospectus under the caption
"Federal Income Tax Consequences" fairly summarizes the federal income tax
considerations that are likely to be material to the Trust and a holder of a
common share of the Trust and, to the extent that it constitutes matters of law
or legal conclusions, is correct in all material respects and presents fairly
the information required to be disclosed therein. We will review the discussion
in the "Federal Income Tax Consequences" section contained in one or more
supplements to the prospectus contained in the Registration Statement.
We assume no obligation to advise you of any changes in our opinion
subsequent to the date hereof. The Trust's qualification as a REIT depends upon
the Trust's ability to meet on a continuing basis, through actual annual
operating and other results, the various requirements under the Code with regard
to, among other things, the sources of its gross income, the composition of its
assets, the level of its distributions to stockholders, and the diversity of its
stock ownership. We have not undertaken to review or audit the Trust's
compliance with these requirements on a continuing basis. Accordingly, no
assurance can be given that the actual operating results of the Trust, and the
entities in which the Trust owns interests, the sources of their income, the
nature of their assets, the level of distributions to shareholders and the
diversity of stock ownership for any given taxable year has satisfied or will
satisfy the requirements under the Code for qualification and taxation as a
REIT.
An opinion of counsel merely represents counsel's best judgment with
respect to the probable outcome on the merits and is not binding on the IRS or
the courts. There can be no assurance that positions contrary to our opinions
will not be taken by the IRS, or that a court considering the issues would not
hold contrary to such opinions.
This opinion is furnished to you solely for the purpose of complying
with applicable securities laws. This opinion may not be used or relied upon by
any other person or for any other purpose and may not be circulated, quoted,
filed with a governmental agency or otherwise referred to for any purpose
without our prior written consent. Notwithstanding the foregoing, consent to
being named as counsel to the Company in the Registration Statement, to the
references in the Registration Statement to our firm and to the inclusion of
this opinion letter as an exhibit to the Registration Statement. In giving such
consent, we do not thereby admit that we are an "expert" within the meaning of
the Securities Act of 1933 as amended.
Sincerely yours,
LOCKE LIDDELL & SAPP LLP
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related Prospectus of United Investors
Realty Trust ( the "Company" ) for the registration of up to $100,000,000 of
Common Shares, Preferred Shares, Debt Securities, Securities Warrants and Rights
and to the incorporation by reference therein of our report dated February 3,
1999, with respect to the consolidated financial statements and schedule of the
Company included in its Annual Report on Form 10-K for the year ended December
31, 1998 and our report dated March 12, 1999 with respect to the Combined
Historical Summary of Gross Income and Direct Operating Expenses of the Dallas
Portfolio included in the Company's Current Report on Form 8-K dated December
31,1998, as amended, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Houston, Texas
April 1, 1999
