As filed with the Securities and Exchange Commission on July 31, 1997
Registration Statement No. 33-________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BERKSHIRE REALTY COMPANY, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 04-3086485
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
470 Atlantic Avenue
Boston, Massachusetts 02210
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Scott D. Spelfogel
Berkshire Realty Company, Inc.
470 Atlantic Avenue
Boston, Massachusetts 02210
(617) 423-2233
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copies to:
Alexander J. Jordan, Jr.
Peabody & Brown
101 Federal Street
Boston, Massachusetts 02110-1832
(617) 345-1103
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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, check the following box. [X].
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, 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. [ ]
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Proposed Proposed
Title of Each Class of Maximum Maximum Amount of
Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered(1) Per Unit(3) Offering Price Fee
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<S> <C> <C> <C> <C>
Debt Securities (1)(2).......
Preferred Stock, $.01 par
value (1)(4).................
Common Stock, $.01 par value $400,000,000 N.A.(7) $400,000,000 $121,212 (8)
(1)(5).......................
Securities Warrants(1)(6)....
======================================================================================================================
</TABLE>
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
(1) In no event will the aggregate maximum offering price of all securities
issued pursuant to this Registration Statement exceed $400,000,000 or, if
any Debt Securities are issued with original issue discount, such greater
amount as shall result in an aggregate offering price of $400,000,000. Any
securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(2) Subject to Footnote (1), there is being registered hereunder an
indeterminate principal amount of Debt Securities.
(3) The proposed maximum offering price per unit will be determined, from time
to time, by the Registrant in connection with the issuance by the
Registrant of the securities registered hereunder.
(4) Subject to Footnote (1), there is being registered hereunder an
indeterminate number of shares of Preferred Stock (par value $.01 per
share) as may be sold, from time to time, by the Registrant. There is also
being registered hereunder an indeterminate number of shares of Preferred
Stock as shall be issuable upon conversion of Debt Securities or exercise
of Securities Warrants registered hereby.
(5) Subject to Footnote (1), there is being registered hereunder an
indeterminate number of shares of Common Stock (par value $.01 per share)
as may be sold, from time to time, by the Registrant. There is also being
registered hereunder an indeterminate number of shares of Common Stock as
shall be issuable upon conversion of shares of Preferred Stock or Debt
Securities or exercise of Securities Warrants registered hereby.
(6) Subject to Footnote (1), there is being registered hereunder an
indeterminate number of Debt Securities Warrants, Preferred Stock
Warrants and Common Stock Warrants representing rights to purchase Debt
Securities, Preferred Stock and Common Stock, respectively, registered
pursuant to this Registration Statement.
(7) Omitted pursuant to General Instruction II.D of Form S-3.
(8) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED WITHOUT THE DELIVERY OF A FINAL PROSPECTUS
SUPPLEMENT AND PROSPECTUS. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO
SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF
THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE
WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE
SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED JULY 31, 1997
PROSPECTUS
BERKSHIRE REALTY COMPANY, INC.
$400,000,000
DEBT SECURITIES, PREFERRED STOCK, COMMON STOCK AND SECURITIES WARRANTS
Berkshire Realty Company, Inc. (the "Company"), may from time to time
offer and sell in one or more series (i) its unsecured debt securities (the
"Debt Securities"); (ii) shares of its preferred stock, par value $.01 per share
(the "Preferred Stock"); (iii) shares of its common stock, par value $.01 per
share ("Common Stock"); or (iv) warrants to purchase Debt Securities (the "Debt
Securities Warrants"), warrants to purchase Preferred Stock (the "Preferred
Stock Warrants") and warrants to purchase Common Stock (the "Common Stock
Warrants") (the Debt Securities Warrants, Preferred Stock Warrants and Common
Stock Warrants, collectively, the "Securities Warrants") with an aggregate
public offering price of up to $400,000,000. The Debt Securities, Preferred
Stock, Common Stock and Securities Warrants offered pursuant hereto
(collectively, the "Offered Securities") may be offered separately or together,
in separate series, in amounts and at prices and terms to be set forth in an
accompanying supplement to this Prospectus (a "Prospectus Supplement"). The
aggregate public offering price and terms of the Offered Securities will be
determined by market conditions at the time such securities are offered. Unless
otherwise specified in a Prospectus Supplement, the proceeds from the sale of
the Offered Securities will be received by the Company and used for general
corporate purposes.
The applicable Prospectus Supplement shall set forth (i) with respect
to the Debt Securities, the specific title, aggregate principal amount,
currency, form (which may be registered or bearer, or certificated or global),
authorized denominations, maturity, rate (or manner of calculation thereof) and
time of payment of interest, terms for redemption at the option of the Company
or repayment at the option of the Holder, any sinking fund provisions and any
conversions provisions; (ii) with respect to Preferred Stock, the specific
designation and stated value per share, any dividend, liquidation, redemption,
conversion, voting and other rights, and all other specific terms of the
Preferred Stock; (iii) with respect to Common Stock, the specific number of
shares and issuance price per share; and (iv) with respect to the Securities
Warrants, the duration, offering price, exercise price and detachability. The
applicable Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Offered Securities
covered by such Prospectus Supplement.
The Offered Securities may be sold on a negotiated or competitive bid
basis to or through underwriters or dealers designated from time to time or by
the Company, directly or through agents. Certain terms of any offering and sale
of Offered Securities, including, where applicable, the names of the
underwriters, dealers or agents, if any, the principal amount or number of
shares or Securities Warrants to be purchased, the purchase price of the Offered
Securities, any applicable commissions, discounts and other compensation to
underwriters, dealers and agents, and the proceeds to the Company from such
sale, will be set forth in, or calculable from information contained in, a
Prospectus Supplement. See PLAN OF DISTRIBUTION.
The Common Stock is listed on the New York Stock Exchange under the
symbol BRI. Subject to certain exceptions, if a person shall become the owner of
shares of Common Stock in excess of 9.8% of
<PAGE>
the then outstanding Common Stock, such excess shares (the "Excess Shares")
shall be subject to certain restrictions with respect to voting rights,
dividends and distributions and transfer. See DESCRIPTION OF THE CAPITAL STOCK
OF THE COMPANY - Restrictions on the Ownership and Transfer of Excess Shares.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR
ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
The date of this Prospectus is __________ __, 1997
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<PAGE>
IN CONNECTION WITH AN OFFERING, THE UNDERWRITERS OF SUCH OFFERING MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE
OF THE SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE
OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE,
THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
No dealer, salesperson or other individual has been authorized to give
any information or to make any representations not contained or incorporated by
reference in this Prospectus or any Prospectus Supplement in connection with the
offering covered by this Prospectus. If given or made, such information or
representations must not be relied upon as having been authorized by the
Company. This Prospectus does not constitute an offer to sell, or a solicitation
of an offer to buy, any Offered Securities in any jurisdiction where, or to any
person to whom, it is unlawful to make any such offer or solicitation. Neither
the delivery of this Prospectus nor any offer or sale made hereunder shall, in
any circumstances, create an implication that there has not been any change in
the facts set forth in this Prospectus or in the affairs of the Company since
the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"), pursuant to the
Exchange Act. Such reports, proxy statements and other information filed by the
Company may be examined without charge at, or copies obtained upon payment of
prescribed fees from, the Public Reference Section of the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC 20549 and are also
available for inspection and copying at the regional offices of the Commission
located at 7 World Trade Center, 13th Floor, New York, NY 10048 and at 500 West
Madison Street, Suite 1400, Chicago, IL 60661-2511. The Commission maintains a
Web site at http://www.sec.gov containing reports, proxy and information
statements and other information regarding registrants, including the Company,
that file electronically with the Commission. In addition, the Common Stock of
the Company is listed on the New York Stock Exchange, and similar information
concerning the Company can also be inspected and copied at the offices of the
New York Stock Exchange, 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission, 450 Fifth Street, N.W.,
Washington, DC 20549, a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended (the "Securities Act"), and the rules and regulations
promulgated thereunder, with respect to the securities offered pursuant to this
Prospectus. This Prospectus, which is part of the Registration Statement, does
not contain all of the information set forth in the Registration Statement and
the exhibits and financial schedules thereto. For further information concerning
the Company and the securities offered hereby, reference is made to the
Registration Statement and the exhibits and schedules filed therewith, which may
be examined without charge at, or copies obtained upon payment of prescribed
fees from, the Commission at its regional offices at the locations listed above.
Any statements contained herein concerning the provisions of any document are
not necessarily complete, and, in each instance, reference is made to the copy
of such document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in its entirety by
such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission (File No. 1-10660) are incorporated herein by reference:
(a) Annual Report on Form 10-K for the year ended December 31, 1996;
(b) Quarterly Report on Form 10-Q for the three-month period ended
March 31, 1997; and
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<PAGE>
(c) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed November 19,
1990 pursuant to the Exchange Act, as amended.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the filing of a post-effective amendment which indicates that all
Offered Securities offered hereby have been sold or which deregisters all
Offered Securities then remaining unsold shall be incorporated by reference in
this Prospectus and made a part hereof from the date of the filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other document subsequently filed with the Commission which also is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the documents incorporated by reference herein (not including
the exhibits to such documents, unless such exhibits are specifically
incorporated by reference in such documents). Request for such copies should be
directed to: Berkshire Realty Company, Inc., 470 Atlantic Avenue, Boston,
Massachusetts 02210, Attention: Marianne Pritchard, Senior Vice President and
Chief Financial Officer, telephone (888) 867-0100.
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<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
descriptions and the financial information and statements appearing elsewhere
and incorporated in this Prospectus. As used herein, the term "Company" includes
Berkshire Realty Company, Inc., and those entities owned or controlled thereby,
including BRI OP Limited Partnership (the "Operating Partnership"), of which
Berkshire Realty Company, Inc., is the Special Limited Partner, and its
wholly-owned "qualified REIT" subsidiary is the general partner (the "General
Partner") and several additional wholly owned subsidiaries that are also
"qualified REIT subsidiaries" for federal tax purposes. Where used herein, the
term "Funds from Operations" ("FFO") shall mean net income (loss) (computed in
accordance with generally accepted accounting principles), excluding gains (or
losses) from debt restructuring and sales of property, plus depreciation and
amortization on real estate assets, and after adjustments for unconsolidated
partnerships and joint ventures, which definition has been adopted by the
National Association of Real Estate Investment Trusts ("NAREIT").
THE COMPANY
General
The Company, a Delaware corporation, is a self-administered and
self-managed equity real estate investment trust ("REIT") which specializes in
the ownership and operation of apartment communities. As of June 1, 1997, the
Company had investments in 41 properties in 8 states consisting of 37 apartment
communities having in the aggregate 12,896 units and 4 retail centers with a
total of 851,000 square feet of leasable space. One retail center is owned
through a joint venture with an affiliate of the Company. In addition, the
Company owns a mortgage loan collateralized by a multi-family apartment complex
located in Florida, a 296-unit development project located in Durham, North
Carolina, and three parcels of land for future development, two of which are in
Greenville, South Carolina, and one in Dallas, Texas. (The properties owned by
the Company are referred to herein as the "Properties".)
The Company's principal executive offices are located at 470 Atlantic
Avenue, Boston, Massachusetts 02210 and its telephone number is (888) 867-0100.
The Operating Subsidiaries of the Company
The operations of the Company are conducted primarily through the
Operating Partnership and subsidiary corporations and limited partnerships (the
"Operating Subsidiaries"), so that, among other things, the Company is able to
comply with certain technical and complex requirements under the federal tax law
relating to the assets and income that a REIT may hold or earn.
The Company presently holds 80.56% of the partnership interests in the
Operating Partnership in its capacity as a Special Limited Partner and through
its ownership of the General Partner. The remaining 19.44% partnership interest
in the Operating Partnership is owned by affiliated and unaffiliated third
parties who own units of limited partnership interest in the Operating
Partnership ("Units"). Units are redeemable on a one-for-one basis for shares of
Common Stock or, at the Company's election, for cash, and holders of Units
generally receive distributions per Unit equal to the dividend per share paid in
respect of the Common Stock. The Amended and Restated Agreement of Limited
Partnership of the Operating Partnership (the "Partnership Agreement") provides
for a special allocation of net income or loss of the Operating Partnership to
holders of Units to provide such holders with the economic effect of net income
or losses realized in respect of all Properties on a consolidated basis.
Tax Status of the Company
The Company first elected to be taxed as a REIT for federal income tax
purposes for its taxable year ended December 31, 1991, and expects to continue
to elect such status. Although the Company
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<PAGE>
believes that it was organized and has been operating in conformity with the
requirements for qualification as a REIT under the Internal Revenue Code of
1986, as amended (the "Code") ("REIT Qualification"), no assurance can be given
that the Company will continue to qualify as a REIT. REIT Qualification involves
application of highly technical and complex Code provisions for which there are
only limited judicial or administrative interpretations. If in any taxable year
the Company should fail to qualify as a REIT, the Company 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, the Company would also be
disqualified from treatment as a REIT for the four taxable years following the
year during which REIT Qualification was lost. As a result, the Company's
ability to make distributions to its shareholders would be adversely affected.
See FEDERAL INCOME TAX CONSIDERATIONS and DESCRIPTION OF THE CAPITAL STOCK OF
THE COMPANY Restrictions on the Ownership and Transfer of Excess Shares.
PRICE AND DIVIDEND HISTORY
The Common Stock is traded on the New York Stock Exchange ("NYSE")
under the symbol BRI. The high and low prices of the Company's Common Stock on
the NYSE for the quarters indicated and the dividends declared for such Common
Stock are:
Dividends
Quarter Ended High Low Paid
------------- ---- --- ----
1994:
First Quarter $12.38 $10.63 $.215
Second Quarter 11.25 10.25 .215
Third Quarter 10.63 9.88 .215
Fourth Quarter 10.00 8.75 .215
-----
$.860
=====
1995:
First Quarter $10.00 $9.00 $.215
Second Quarter 10.00 9.25 .225
Third Quarter 10.38 9.50 .225
Fourth Quarter 10.00 9.25 .225
-----
$.890
=====
1996:
First Quarter $10.38 $9.75 $.225
Second Quarter 11.00 9.88 .225
Third Quarter 11.00 9.63 .225
Fourth Quarter 10.25 9.38 .225
-----
$.900
=====
1997:
First Quarter $11.75 $10.00 $.225
Second Quarter 11.25 10.50 .225
------
$.450
=====
On July 28, 1997, the last reported sale price of the Common Stock on
the NYSE was $11 5/16 per share. On January 31, 1997, the Company had
approximately 28,400 shareholders of record.
The Company's Common Stock warrants are traded on the NYSE under the
symbol "BRI/WS". Three million warrants were admitted to trading on September 7,
1994. Upon exercise, each warrant entitles the holder to the right to acquire
one share of Common Stock. The warrants are exercisable until September 8, 1998.
The exercise price was $10.75 until September 7, 1995, and $11.79 thereafter. As
of December 31, 1996, 1,943 shares of Common Stock were issued upon exercise of
warrants, and
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<PAGE>
2,998,057 warrants remained outstanding. The high and low prices of the Company
warrants based on a composite average for each quarter during 1996 and 1995 are:
Quarter Ended High Low
March 31, 1997 $1.00 $.44
June 30, 1997 .88 .50
March 31, 1996 $ .69 $ .50
June 30, 1996 .75 .56
September 30, 1996 .69 .44
December 31, 1996 .56 .31
March 31, 1995 $ .75 $ .56
June 30, 1995 .69 .38
September 30, 1995 .50 .31
December 31, 1995 .75 .41
September 30, 1994 $2.25 $ .63
December 31, 1994 .75 .50
On July 28, 1997, the last reported sale price of the Warrants on the NYSE was
$7/16 per warrant.
USE OF PROCEEDS
Unless otherwise described in the Prospectus Supplement which
accompanies this Prospectus, the Company intends to use the net proceeds from
the sale of the Offered Securities for general corporate purposes, which may
include the acquisition, development, rehabilitation and operation of apartment
communities as suitable opportunities arise, the improvement of certain
properties in the Company's portfolio and the repayment of certain
then-outstanding secured or unsecured indebtedness.
DESCRIPTION OF THE CAPITAL STOCK OF THE COMPANY
The authorized capital stock of the Company consists of 140,000,000
shares of Common Stock and 60,000,000 shares of Preferred Stock.
Common Stock
Subject to such preferential rights as may be granted by the Board of
Directors in connection with the future issuance of Preferred Stock, holders of
shares of Common Stock are entitled to one vote per share on all matters to be
voted on by shareholders and are entitled to receive ratably such dividends as
may be declared in respect of the Common Stock by the Board of Directors in its
discretion from funds legally available therefor. In the event of the
liquidation, dissolution or winding up of the Company, holders of Common Stock
are entitled to share ratably in all assets remaining after payment of all debts
and other liabilities and any liquidation preference of the holders of Preferred
Stock. Holders of Common Stock have no subscription, conversion or redemption
rights. Matters submitted for shareholder approval generally require a majority
vote of the shares present and voting thereon; certain matters, however, require
a Supermajority vote. See "Charter and By-Law Provisions - Voting Requirements"
below. The outstanding shares of Common Stock are fully paid and assessable.
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<PAGE>
Preferred Stock
The Board of Directors is empowered by the Company's Restated
Certificate of Incorporation to designate and issue from time to time one or
more classes or series of Preferred Stock without shareholder approval. The
Board of Directors may fix the relative rights, limitations, preferences and
privileges of each class or series of Preferred Stock so issued. Because the
Board of Directors has the power to establish the preferences and rights of each
class or series of Preferred Stock, it may afford the holders in any series or
class of Preferred Stock preferences, powers and rights, voting or otherwise,
senior to the rights of holders of Common Stock..
The applicable Prospectus Supplement will describe each of the
following terms that may be applicable in respect of any Preferred Stock offered
and issued pursuant to this Prospectus: (1) the specific designation, number of
shares, seniority and purchase price; (2) any liquidation preference per share;
(3) any maturity date; (4) any mandatory or option redemption or repayment dates
and terms or sinking fund provisions; (5) any dividend rate or rates and the
dates on which any dividends will be payable (or the method by which such rates
or dates will be determined); (6) any voting rights; (7) any rights to convert
the Preferred Stock into other securities or rights, including a description of
the securities or rights into which such Preferred Stock is convertible (which
may include other Preferred Stock) and the terms and conditions upon which such
conversions will be effected including, without limitation, conversion rates or
formulas conversion periods and other related provisions; (8) the place or
places where dividends and other payments with respect to the Preferred Stock
will be payable; (9) any additional voting, dividend, liquidation, redemption
and other rights, preferences, privileges, limitations and restrictions,
including restrictions imposed for the purpose of maintaining the Company's
qualification as a REIT. Upon issuance and delivery against payment therefor,
the Preferred Stock will be fully paid and nonassessable.
Charter and By-Law Provisions
Shareholders' rights and related matters are governed by the Delaware
General Corporation Law, the Company's Restated Certificate of Incorporation
(the "Certificate") and its By-Laws (the "By-Laws") (the Certificate and
By-Laws, collectively, the "Organizational Documents"). Certain provisions of
the Organizational Documents, which are summarized below, may make it more
difficult to change the composition of the Board of Directors and may discourage
or make more difficult any attempt by a person or group to obtain control of the
Company.
Voting Requirements. Holders of shares of Common Stock of the Company,
by a majority or Supermajority vote, may take certain actions, including
approving amendments to the Company's Certificate. Any such change, if approved
by the holders of the requisite number of shares, would be binding on all
nonconsenting shareholders. Under the Organizational Documents, a Supermajority
vote is required in order to amend those portions of the Organizational
Documents which concern: (1) the definition of "Supermajority"; (2) the
requirements for amending the Organizational Documents; (3) the requirements
regarding Excess Share ownership (i.e. ownership of Shares in excess of 9.8% of
the outstanding Shares); (4) the actions which require a Supermajority vote; (5)
the requirements regarding Business Combinations (see "Business Combinations"
below); (6) the staggering of the terms of the Directors; (7) the limitation of
the liability of Directors; and (8) the perpetual life of the Company. A
Supermajority vote is defined to mean the vote or consent of shareholders owning
more than 66-2/3% of the outstanding shares of Common Stock. Shareholders may
not take action by written consent without a meeting.
Special Meetings. Special meetings may be called, to address specific
Company matters, by the Chairman of the Board, the President of the Company or a
majority of the Directors or independent Directors. Shareholders may not call a
special meeting.
Staggered Board of Directors. The Certificate classifies the Directors,
concerning the term of their respective directorships, into three classes, one
of which is elected annually.
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<PAGE>
Advance Notice of Shareholder Proposals and Nominations of Directors.
The By-Laws of the Company provide that no matter proposed by a shareholder will
be considered at any annual meeting of special meeting or shareholders unless
notice of such matter is provided to the Company not less than 50 days, nor more
than 150 days, before the scheduled meeting. If, however, less than 70 days'
notice of the scheduled meeting is given, the Company must receive notice of
shareholder proposals by the close of business on the fifteenth day following
the day such notice was mailed. Furthermore, shareholders are not permitted to
nominate individuals to serve as Directors unless notice of such nomination is
given to the Company not less than 60 days, nor more than 150 days, before an
annual meeting. If, however, on the day notice is given to shareholders of such
annual meeting less than 70 days remain until such meeting, the Company must
receive notice of a shareholder nomination within 10 days of such day.
The provisions for a classified Board, together with related provisions
designed to strengthen the position of the Board by (i) providing for
limitations on the removal of Directors and the filling of vacancies on the
Board, (ii) requiring that shareholder action be taken only at an annual meeting
or a special meeting and limiting the ability of shareholders to call special
meetings, (iii) prescribing procedures for the advance notice of shareholder
proposals and nominations of Directors by the shareholders and (iv) requiring a
vote of 66-2/3% or more to effect changes in certain provisions, has the overall
effect of making it more difficult to acquire and exercise control of the
Company and to remove incumbent officers and Directors, providing such officers
and Directors with enhanced ability to retain their positions. Such provisions
may also limit shareholder participation in certain types of transactions that
might be proposed whether or not such transactions were favored by a majority of
shareholders.
Business Combinations
The Organizational Documents affirmatively adopt Section 203 of the
Delaware General Corporation Law, which prohibits Interested Shareholders from
engaging in a Business Combination with the Company. In particular, the
Organizational Documents provide that the Company shall not engage in any
Business Combination with any Interested Shareholder for a period of three years
following the time that such Shareholder became an Interested Shareholder,
unless: (a) prior to such time, the Board approved either the Business
Combination or the transaction which resulted in the shareholder becoming an
Interested Shareholder; or (b) upon consummation of the transaction which
resulted in the shareholder becoming an Interested Shareholder, the Interested
Shareholder owned at least 85% of the shares of Common Stock then outstanding,
excluding shares held by Directors who are also officers of the Company and
employees' stock plans in which employees do not have the right to determine
confidentially whether shares held by the plan will be tendered in a tender or
exchange offer; or (c) at or subsequent to such time, the Business Combination
is approved by the Board and authorized by a Supermajority of the outstanding
shares of Common Stock, excluding the shares owned by the Interested
Shareholder. The term "Business Combination" is defined to include, among other
things, a merger or consolidation of the Company with, or caused by, an
Interested Shareholder and other specified transactions which would have the
effect of the Interested Shareholder gaining control of the Company. An
"Interested Shareholder" includes, among others, any Person owning 15% or more
of the outstanding shares of Common Stock of the Company; provided, however that
the term "Interested Shareholder" does not include any person whose ownership of
shares in excess of 15% is the result of action taken solely by the Company. In
that event, such person would be considered an Interested Shareholder if he
thereafter acquires additional shares of Common Stock of the Company, except as
a result of further Company action not caused by such Interested Shareholder.
The provisions of the Organizational Documents concerning Business
Combinations and the restriction on the transfer of Shares which are described
above cannot be changed except by amendment to the Organizational Documents by a
Supermajority vote.
Pursuant to the Delaware General Corporation Law, the Company cannot
merge with or sell all or substantially all of the assets of the Company, except
pursuant to a resolution approved by the affirmative vote of a majority of the
outstanding shares of Common Stock entitled to vote on the resolution. In
addition, the Partnership Agreement requires that any merger or sale of all or
substantially all of the assets
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of or dissolution of the Operating Partnership be approved by the affirmative
vote of a majority of the outstanding Units.
Shareholder Rights Plan
It is possible that the Board will adopt a Shareholder Rights Plan (a
plan intended to force the initiator of a hostile takeover to negotiate by
granting the shareholders rights to buy shares at a bargain price). Such a Plan
(i) may have the effect of discouraging changes of control of the Company, and
(ii) may limit the opportunity of a shareholder to receive a premium for his or
her shares in the event an investor is making purchases to assemble a block of
shares.
Restrictions on the Ownership and Transfer of Excess Shares
For the Company to qualify as a REIT under the Code not more than 50%
of its outstanding shares may be owned by five or fewer individuals during the
last half of the year, and the shares of Common Stock must be 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. Furthermore, the Company cannot
own, directly or by attribution, 10% or more of any tenant of a Property or a
Property securing a mortgage loan investment from which the Company is entitled
to receive an additional equity return. The Organizational Documents (1) provide
that if any person or group of affiliated persons directly or indirectly
acquires ownership, in the aggregate, of more than 9.8% of the then outstanding
shares of Common Stock ("Excess Shares") such Excess Shares shall be deprived of
voting rights, shall not be included in any quorum count and any dividends and
distributions on such shares shall be paid into an escrow account payable to the
holder of the Excess Shares at the time they cease to be Excess Shares, and (2)
empower the Board (i) to refuse to permit any transfer of shares of Common Stock
which, in its sole discretion, would jeopardize the status of the Company as a
REIT and (ii) to repurchase any Excess Shares to maintain or bring the ownership
of shares into conformity with such 9.8% limit. The 9.8% limitation on ownership
of shares of Common Stock encompasses shares held directly or indirectly as a
result of options, warrants or other convertible securities.
The Company may require each proposed transferee of shares of Common
Stock to deliver a statement or affidavit setting forth the number of shares, if
any, already owned, directly, indirectly or by attribution by such transferee
and may refuse to permit any transfer of shares which would cause an
accumulation of shares that would jeopardize the status of the Company as a
REIT. A shareholder who knowingly holds Excess Shares is required to indemnify
the Company for any losses the Company may suffer as a result of such holdings.
Excess Shares shall be deemed to be offered for sale to the Company or
its designees. The purchase price will be the average closing sales price as
reported by the New York Stock Exchange during the 30-day period ending on the
business day prior to the purchase date. The Certificate further provides that
the purchase price may be paid in the form of a promissory note of the Company.
However, if the person from whom the Excess Shares were purchased sells a like
number of his or her remaining shares of Common Stock within thirty days of the
purchase date, then the Company shall rescind the purchase of the Excess Shares
unless counsel to the Company is of the opinion that such rescission would
jeopardize the Company's tax status as a REIT. In that event, in lieu of
rescission, the Company shall make immediate payment for the shares.
Such provisions do not apply to the acquisition of shares by an
underwriter in a public offering by the Company or to any transaction involving
the issuance of shares by the Company when its qualification as a REIT would not
be jeopardized.
Termination
The Company may be dissolved at any time by Supermajority vote and,
otherwise, pursuant to the procedure set forth in the Delaware General
Corporation Law. In 1991 when it commenced operations as
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a REIT, the Company granted the Shareholders the right to vote on its continued
existence after a period of approximately six and one-half years of operations.
Therefore, the Certificate requires that the Company's Board of Directors
prepare and submit to the shareholders on or before December 31, 1998 a proposal
to liquidate the Company's assets and distribute the net proceeds of such
liquidation. The liquidation proposal will become effective only if approved by
shareholders holding a majority of Common Stock then outstanding.
Limitation of Directors' Liability
The Company's Certificate provides for indemnification of its officers
and Directors to the fullest extent permitted by Sections 145 and 102(b)(7) of
the Delaware General Corporation Law and relieves the Directors of certain
monetary liabilities to the Company and its shareholders. In general, Delaware
law permits the Company to indemnify its officers and Directors so long as they
act in good faith and in a manner reasonably believed by them to be in, or not
opposed to, the best interests of the Company. Subject to the provisions of
Sections 145 and 102(b)(7) of the Delaware General Corporation Law, the Company
intends to indemnify its officers and Directors against losses, liabilities and
expenses (including attorneys' fees) incurred by them that are related to their
being officers or Directors of the Company.
Other Matters
The transfer agent and registrar for the Company's Common Stock is
American Stock Transfer & Trust Company.
FEDERAL INCOME TAX CONSIDERATIONS
The Company believes that it has operated, and the Company intends to
continue to operate, in such manner as to qualify as a REIT under the Internal
Revenue Code of 1986, as amended (the "Code"), but no assurance can be given
that it will at all times so qualify.
The provisions of the Code pertaining to REITs are highly technical and
complex. The following is a brief and very general summary of certain provisions
which currently govern the federal income tax treatment of the Company and its
shareholders. For the particular provisions which govern the federal income tax
treatment of the Company and its shareholders, reference is made to Sections 856
through 860 of the Code, the Income Tax Regulations promulgated thereunder and
administrative and judicial interpretations thereof. This summary does not give
a detailed discussion of any state, local or foreign tax consideration nor does
it discuss all 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) who are subject
to special treatment under the Federal income tax laws. As used in this section,
the term "Company" refers solely to Berkshire Realty Company, Inc.
Under the Code, if certain requirements are met in a taxable year, a
REIT will generally not be subject to federal income tax with respect to income
which it distributes to its shareholders. However, the Company may be subject to
federal income tax under certain circumstances, including taxes at regular
corporate rates on any undistributed REIT taxable income, the "alternative
minimum tax" on its items of tax preference, and adjustments and taxes imposed
on income and gain generated by certain extraordinary transactions. If the
Company fails to qualify during any taxable year as a REIT, unless certain
relief provisions are available, it will be subject to tax (including any
applicable alternative minimum tax) on its taxable income at regular corporate
rates, which would have a material adverse effect upon its shareholders.
As long as the Company qualifies as a REIT, distributions made to the
Company's taxable U.S. shareholders out of current or accumulated earnings and
profits (and not designated as capital gain
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dividends) will be taken into account by such U.S. shareholders as ordinary
income and will not be eligible for the dividends received deduction generally
available to corporations. As used herein, the term "U.S. shareholder" means a
shareholder that for U.S. federal income tax purposes is: (a)(i) a citizen or
resident of the United States; (ii) a corporation, partnership, or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof; (iii) an estate the income of which is subject to U.S.
federal income taxation regardless of its source; or (iv) a trust (x) over the
administration of which a court within the United States is able to exercise
primary supervision and (y) all substantial decisions of which one or more
United States fiduciaries have the authority to control, and (b) does not have
special status under the Code, such as a tax-exempt organization. Distributions
that are designated as capital gain dividends will be taxed as long-term capital
gains (to the extent they do not exceed the Company's actual net capital gain
for the taxable year) without regard to the period for which the shareholder has
held his shares. However, corporate shareholders may be required to treat up to
20% of certain capital gain dividends as ordinary income. If a shareholder
realizes a loss on the disposition of shares held for not more than six months,
the loss will be treated as a long-term capital loss to the extent of any prior
distributions with respect to such shares that the shareholder received as
capital gain dividends. Distributions in excess of current and accumulated
earnings and profits will not be taxable to a shareholder to the extent that
they do not exceed the adjusted basis of the shareholder's shares, but rather
will reduce the adjusted basis of such shares. To the extent that distributions
in excess of current and accumulated earnings and profits exceed the adjusted
basis of a shareholder's shares, the distributions will be included in income as
long-term capital gain (or short-term capital gain if the shares have been held
for one year or less) assuming the shares are a capital asset in the hands of
the shareholder. In addition, any dividend declared by the Company in October,
November or December of any year and payable to a shareholder of record on a
specified date in any such month shall be treated as both paid by the Company
and received by the shareholder on December 31 of such year, provided that the
distribution is actually paid by the Company during January of the following
calendar year.
Investors are urged to consult their own tax advisors with respect to
the appropriateness of an investment in the Offered Securities and with respect
to the tax consequences arising under the federal law and the laws of any state,
municipality or other taxing jurisdiction, including tax consequences arising
from such investor's own tax characteristics. In particular, foreign investors
should consult their own tax advisors concerning the tax consequences of an
investment in the Company including the possibility of United States income tax
withholding on Company distributions.
DESCRIPTION OF DEBT SECURITIES
Capitalized terms not otherwise defined herein shall have the meanings
set forth in the Indenture.
The Debt Securities are to be issued under an Indenture, a copy of the
form of which has been filed as an exhibit to the Registration Statement of
which this Prospectus is a part and incorporated herein by reference, subject to
such supplements and amendments as may be adopted from time to time (each an
"Indenture" and collectively, the "Indentures"). The Indentures will be executed
by the Company and one or more trustees (each a "Trustee"). The Indenture is
subject to, and governed by, the Trust Indenture Act of 1939, as amended (the
"TIA"). The statements made hereunder relating to the Indenture and the Debt
Securities to be issued thereunder are summaries of certain provisions thereof
and do not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all provisions of the Indenture and such Debt
Securities. All section references appearing herein are to sections of the
Indenture, and capitalized terms used but not defined herein shall have the
respective meanings set forth in the Indenture.
General
The Debt Securities will be direct and unsecured general obligations of
the Company, unless otherwise provided in the Prospectus Supplement. As
indicated in the applicable Prospectus Supplement, the Debt Securities may be
either senior debt, senior to all future subordinated indebtedness of the
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Company and pari passu with other current and future unsecured, unsubordinated
indebtedness of the Company, or, in the alternative, subordinated debt
subordinate in right of payment to current and future senior debt and pari passu
with other future subordinated indebtedness of the Company. The Indenture
provides that the Debt Securities may be issued without limit as to aggregate
principal amount, in one or more series, in each case as established from time
to time in or pursuant to authority granted by a resolution of the Board of
Directors of the Company or as established in one or more indentures
supplemental to the Indenture. All Debt Securities of one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders of the Debt Securities of such
series, for issuances of additional Debt Securities of such series (Section
3.1).
The Indenture provides that there may be more than one Trustee
hereunder, each with respect to one or more series of Debt Securities. Any
Trustee under the Indenture may resign or be removed with respect to one or more
series of Debt Securities, and a successor Trustee may be appointed to act with
respect to such series (Section 6.9). In the event that two or more persons are
acting as Trustee with respect to different series of Debt Securities, each such
Trustee shall be a Trustee of a trust under the Indenture separate and apart
from the trust administered by any other Trustee (Section 6.10), and, except as
otherwise indicated herein, any action described herein to be taken by the
Trustee may be taken by each such Trustee with respect to, and only with respect
to, the one or more series of Debt Securities for which it is Trustee under the
Indenture.
Reference is made to the Prospectus Supplement relating to the series
of Debt Securities being offered for the specific terms thereof, including:
1. the title of such Debt Securities (including whether they are
senior debt or subordinated debt and whether they are
convertible);
2. the aggregate principal amount of such Debt Securities and any
limit on such aggregate principal amount;
3. the date or dates, or the method for determining such date or
dates, on which the principal of such Debt Securities will be
payable;
4. the rate or rates (which may be fixed or variable), or the
method by which such rate or rates shall be determined, at
which such Debt Securities will bear interest, if any;
5. the date or dates, or the method for determining such date or
dates, from which any such interest will accrue, the Interest
Payment Dates on which any such interest will be payable, the
Regular Record Dates for such Interest Payment Dates, or the
method by which such dates shall be determined, the Person to
whom such interest shall be payable, and the basis upon which
interest shall be calculated if other than that of a 360 day
year of twelve 30 day months;
6. the place or places where the principal of (and premium, if
any) and interest, if any, on such Debt Securities will be
payable, such Debt Securities may be surrendered for
conversion or registration of transfer or exchange, and
notices or demands to or upon the Company in respect of such
Debt Securities and the Indenture may be served;
7. the period or periods within which, the price or prices at
which and the terms and conditions upon which such Debt
Securities may be redeemed, as a whole or in part, at the
option of the Company, if the Company is to have such an
option;
8. the obligation, if any, of the Company to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund or
analogous provision or at the option of
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a Holder thereof, and the period or periods within which, the
price or prices at which and the terms and conditions upon
which such Debt Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such obligation;
9. the percentage of the principal at which such Debt Securities
will be issued and, if other than the principal amount
thereof, the portion of the principal amount thereof payable
upon declaration of acceleration of the maturity thereof, or
(if applicable) the portion of the principal amount of such
Debt Securities which is convertible into shares of Common
Stock, Preferred Stock or Debt Securities of another series,
or the method by which any such portion shall be determined;
10. if other than U.S. dollars, the currency or currencies in
which such Debt Securities are denominated and payable, which
may be a foreign currency or units of two or more foreign
currencies or a composite currency or currencies, and the
terms and conditions relating thereto;
11. whether the amount of payments of principal of (and premium,
if any) on interest, if any, on such Debt Securities may be
determined with reference to an index, formula or other method
(which index, formula or method may, but need not be, based on
a currency, currencies, currency unit or units or composite
currency or currencies) and the manner in which such amounts
shall be determined;
12. any additions to, modifications of or deletions from the terms
of such Debt Securities with respect to the Events of Default
or covenants set forth in the Indenture;
13. whether such Debt Securities will be issued in certificated or
book-entry form;
14. whether such Debt Securities will be in registered or bearer
form and, if in registered form, the denominations thereof if
other than $1,000 and any integral multiple thereof and, if in
bearer form, the denominations thereof and terms and
conditions relating thereto;
15. the applicability, if any, of the defeasance and covenant
defeasance provisions of Article 14 of the Indenture;
16. the terms, if any, upon which Debt Securities may be
convertible into Common Stock, Preferred Stock or Debt
Securities of another series of the Company and the terms and
conditions upon which such conversion will be effected,
including, without limitation, the initial conversion price or
rate and the conversion period;
17. if convertible, in connection with the preservation of the
Company's status as a REIT, any applicable limitations on the
ownership or transferability of the Common Stock, Preferred
Stock or other capital stock of the Company into which such
Debt Securities are convertible;
18. whether and under what circumstances the Company will pay
Additional Amounts as contemplated in the Indenture on such
Debt Securities in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have
the option to redeem such Debt Securities in lieu of making
such payment;
19. the terms, if any, upon which such Debt Securities will be
subordinate to other debt of the Company; and
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20. any other terms of such Debt Securities not inconsistent with
the provisions of the Indenture (Section 3.1).
The Debt Securities may provide for less than the entire principal
amount thereof to be payable upon declaration of acceleration of the maturity
thereof or bear no interest or bear interest at a rate which at the time of
issuance is below market rates ("Original Issue Discount Securities"). Special
U.S. Federal income tax accounting and other considerations applicable to
Original Issue Discount Securities will be described in the applicable
Prospectus Supplement.
The Indenture does not contain any other provisions that would limit
the ability of the Company to incur indebtedness or that would afford holders of
Debt Securities protection in the event of a highly leveraged or similar
transaction involving the Company or in the event of a change of control.
However, restrictions on ownership and transfers of the Company's Common Stock
are designed to preserve its status as a REIT and, therefore, may act to prevent
or hinder a change of control. See DESCRIPTION OF THE CAPITAL STOCK OF THE
COMPANY. Reference is made to the applicable Prospectus Supplement for
information with respect to any deletions from, modifications of or additions to
the Events of Default or covenants of the Company that are described below,
including any addition of a covenant or other provision providing event risk or
similar protection.
Denominations, Interest, Registration and Transfer
Unless otherwise described in the applicable Prospectus Supplement, the
Debt Securities of any series will be issuable in denominations of $1,000 and
integral multiples thereof (Section 3.2).
Unless otherwise described in the applicable Prospectus Supplement, the
principal of (and premium, if any) and interest on any series of Debt Securities
will be payable at the corporate trust office of the Trustee, provided that, at
the option of the Company, payment of interest may be made by check mailed to
the address of the Person entitled thereto as it appears in the Security
Register (Sections 3.5 and 3.7).
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the applicable Regular Record
Date and may either be paid to the person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to the Holder of such Debt Security not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner, all as more completely described in the Indenture.
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of such
Debt Securities at the corporate trust office of the Trustee. In addition,
subject to certain limitations imposed upon Debt Securities issued in book-entry
form, the Debt Securities of any series shall be surrendered for conversion (if
applicable) or registration of transfer thereof at the corporate trust office of
the Trustee. Every Debt Security surrendered for conversion, registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer. No service charge will be made for any registration of
transfer or exchange of any Debt Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith (Section 3.5). If the applicable Prospectus Supplement
refers to any transfer agent (in addition to the Trustee) initially designated
by the Company with respect to any series of Debt Securities, the Company may at
any time rescind the designation of any such transfer agent or approve a change
in the location through which any such transfer agent acts, except that the
Company will be required to maintain a transfer agent in each Place of Payment
for such series. The Company may at any time designate additional transfer
agents with respect to any series of Debt Securities (Section 10.2).
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Neither the Company nor the Trustee shall be required to (i) issue,
register the transfer of or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before any selection of Debt
Securities of that series to be redeemed and ending at the close of business on
the day of mailing of the relevant notice of redemption; (ii) register the
transfer of or exchange any Debt Security, or portion thereof, called for
redemption, except the unredeemed portion of any Debt Security being redeemed in
part; or (iii) issue, register the transfer of or exchange any Debt Security
which has been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Debt Security not to be so repaid (Section 3.5).
Merger, Consolidation or Sale
The Company, without the consent of the Holders of any of the Debt
Securities, may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into, any other corporation, provided
that (a) either the Company shall be the continuing corporation or, the
successor corporation (if other than the Company) formed by or resulting from
any such consolidation or merger or which shall have received the transfer of
such assets shall expressly assume payment of the principal of (and premium, if
any) and interest on all of the Debt Securities and the due and punctual
performance and observance of all of the covenants and conditions contained in
the Indenture; (b) 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 would become an Event of Default, shall have occurred and be continuing;
and (c) an officer's certificate and legal opinion covering such conditions
shall be delivered to the Trustee (Sections 8.1 and 8.3).
Certain Covenants
Existence. Except as permitted under "Merger, Consolidation or Sale,"
the Company will do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Company shall not be
required to preserve any right or franchise if it determines that the
preservation thereof is no longer desirable in the conduct of its business and
that the loss thereof is not disadvantageous in any material respect to the
Holders of the Debt Securities (Section 10.6).
Maintenance of Properties. The Company will cause all of its properties
used or useful in the conduct of its business or the business of any Subsidiary
to be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements and improvements thereof, all as in the judgment
of the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that the Company and its Subsidiaries shall not be prevented from
selling or otherwise disposing for value its properties in the ordinary course
of business (Section 10.7).
Insurance. The Company will, and will cause each of its Subsidiaries
to, keep all of its insurable properties insured against loss or damage at least
equal to their then full insurable value with insurers of recognized
responsibility (Section 10.8).
Payment of Taxes and Other Claims. The Company will pay or discharge or
cause to be paid or discharged, before the same shall become delinquent, (i) all
taxes, assessments and governmental charges levied or imposed upon it or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary; and (ii) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings (Section 10.9).
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Provision of Financial Information. Whether or not the Company is
subject to Section 13 or 15(d) of the Exchange Act, the Company will, to the
extent permitted under the Exchange Act, file with the Commission the annual
reports, quarterly reports and other documents which the Company would have been
required to file with the Commission pursuant to such Section 13 or 15(d) (the
"Financial Statements") if the Company were so subject, such documents to be
filed with the Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been required to file such
documents if the Company were so subject (Section 10.10). The Company will also
in any event (x) within 15 days of each Required Filing Date 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 Exchange Act if the Company were subject to such
Section; and (y) if filing such documents by the Company with the Commission is
not permitted under the Exchange Act, promptly upon written request and payment
of the reasonable cost of duplication and delivery, supply copies of such
documents to any Holder (Section 7.3).
Additional Covenants. Any additional covenants of the Company with
respect to any series of Debt Securities will be set forth in the Prospectus
Supplement relating thereto.
Events of Default, Notice and Waiver
The Indenture provides that the following events are "Events of
Default" with respect to any series of Debt Securities issued thereunder: (a)
default for 30 days in the payment of any installment of interest on any Debt
Security of such series; (b) default in the payment of the principal of (or
premium, if any, on) any Debt Security of such series at its Maturity or in the
deposit of any sinking fund payment when and as due by the terms of any Debt
Security; (c) default in the performance of any other covenant of the Company
contained in the Indenture (other than a covenant added to the Indenture solely
for the benefit of a series of Debt Securities issued thereunder other than such
series), continued for 60 days after written notice as provided in the
Indenture; (d) default in the payment of an aggregate principal amount not less
than $10,000,000 of any evidence of indebtedness of the Company or any mortgage,
indenture or other instrument under which such indebtedness is issued or by
which such indebtedness is secured, such default having occurred after the
expiration of any applicable grace period and having resulted in the
acceleration of the maturity of such indebtedness, but only if such indebtedness
is not discharged or such acceleration is not rescinded or annulled within a
period of ten (10) days after written notice as provided in the Indenture; (e)
certain events of bankruptcy, insolvency or reorganization, or court appointment
of a receiver, liquidator or trustee of the Company or for substantially all of
its properties; and (f) any other Event of Default provided with respect to a
particular series of Debt Securities (Section 5.1).
If an Event of Default under the Indenture with respect to Debt
Securities of any series at the time Outstanding occurs and is continuing, then
in every such case the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Debt Securities of that series may declare the
principal amount (or, if the Debt Securities of the series are Original Issue
Discount Securities or Indexed Securities, such portion of the principal amount
as may be specified in the terms thereof) of all of the Debt Securities of that
series to be due and payable immediately by written notice thereof to the
Company (and to the Trustee if given by the Holders). However, at any time after
such a declaration of acceleration with respect to Debt Securities of such
series has been made, but before a judgment or decree for payment of the money
due has been obtained by the Trustee, the holders of a majority in principal
amount of Outstanding Debt Securities of such series may rescind and annul such
declaration and its consequences if (a) the Company shall have deposited with
the Trustee all required payments of the principal of (and premium, if any) and
interest on the Debt Securities of such series, plus certain fees, expenses,
disbursements and advances of the Trustee, and (b) all Events of Default, other
than the non-payment of accelerated principal (or specified portion thereof),
with respect to Debt Securities of such series have been cured or waived as
provided in the Indenture (Section 5.2). The Indenture also provides that the
Holders of not less than a majority in principal amount of the Outstanding Debt
Securities of any series may waive any past default with respect to such series
and its consequences, except a default (x) in the payment of the principal of
(or premium, if any) or interest on any Debt Security of such series or (y) in
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respect of a covenant or provisions contained in the Indenture that cannot be
modified or amended without the consent of the Holder of each outstanding Debt
Security affected thereby (Section 5.13).
The Trustee is required to give notice to the Holders of Debt
Securities within 90 days of a default under the Indenture; provided, however,
that the Trustee may withhold notice to the holders of any series of Debt
Securities of any default with respect to such series (except a default in the
payment of the principal of (or premium, if any) or interest on any Debt
Security of such series or in the payment of any sinking fund installment in
respect of any Debt Security of such series) if the Responsible Officers of the
Trustee consider such withholding to be in the interest of such Holders (Section
6.2).
The Indenture provides that no holders of Debt Securities of any series
may institute any proceedings, judicial or otherwise, with respect to the
Indenture or for any remedy thereunder, except in the case of failure of the
Trustee, for 60 days, to act after it has received a written request to
institute proceedings in respect of an Event of Default from the Holders of not
less than 25% in principal amount of the outstanding Debt Securities of such
series as well as an offer of reasonable indemnity (Section 5.7). This provision
will not prevent, however, any holder of Debt Securities from instituting suit
for the enforcement of payment of the principal of (and premium, if any) and
interest on such Debt Securities at the respective due dates thereof (Section
5.8).
Subject to the provisions in the Indenture relating to its duties in
case of default, the Trustee is under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction of any Holders
of any series of Debt Securities then outstanding under the Indenture, unless
such Holders shall have offered to the Trustee reasonable security or indemnity
(Section 6.3). The Holders of not less than a majority in principal amount of
the Outstanding Debt 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 of exercising any trust or power conferred upon the Trustee.
However, the Trustee may refuse to follow any direction which is in conflict
with any law or the Indenture, which may involve the Trustee in personal
liability or which may be unduly prejudicial to the Holders of Debt Securities
of such series not joining therein (Section 5.12).
Within 120 days after the close of each fiscal year, the Company must
deliver to the Trustee a certificate, signed by one of several specified
officers, stating whether or not such officer has knowledge of any default under
the Indenture and, if so, specifying each such default and the nature and status
thereof (Section 10.11).
Modification of the Indenture
Modifications and amendments of the Indenture may be made only with the
consent of the Holders of not less than a majority in principal amount of all
outstanding Debt Securities which are affected by such modification or
amendment; provided, however, that no such modification or amendment may,
without the consent of the holder of each such Debt Security affected thereby,
(a) change the Stated Maturity of the principal of, or any installment of
interest (or premium, if any) on, any such Debt Security; (b) reduce the
principal amount of, or the rate or amount of interest on, or any premium on
redemption of, any such Debt Security, or reduce the amount of principal of an
Original Issue Discount Security that would be due and payable upon declaration
of acceleration of the maturity thereof or would be provable in bankruptcy, or
adversely affect any right of repayment of the Holder of any such Debt Security;
(c) change the Place of Payment, or the coin or currency, for payment of
principal of, premium, if any, or interest on any such Debt Security; (d) impair
the right to institute suit for the enforcement of any payment on or with
respect to any such Debt Security; (e) reduce the above-stated percentage of
outstanding Debt Securities of any series necessary to modify or amend the
Indenture, to waive compliance with certain provisions thereof or certain
defaults and consequences thereunder or to reduce the quorum or voting
requirements set forth in the Indenture; or (f) modify any of the foregoing
provisions or any of the provisions relating to the waiver of certain past
defaults or certain covenants, except to increase the required percentage to
effect such action or to provide that certain other provisions may not be
modified or waived without the consent of the Holder of such Debt Security
(Section 9.2).
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The Holders of not less than a majority in principal amount of each
series of Outstanding Debt Securities have the right to waive compliance by the
Company with certain covenants in the Indenture (Section 10.13).
Modifications and amendments of the Indenture may be made by the
Company and the Trustee without the consent of any Holder of Debt Securities for
any of the following purposes: (i) to evidence the succession of another person
to the Company as obligor under the Indenture; (ii) to add to the covenants of
the Company for the benefit of the Holders of all or any series of Debt
Securities or to surrender any right or power conferred upon the Company in the
Indenture; (iii) to add Events of Default for the benefit of the Holders of all
or any series of Debt Securities; (iv) to add or change any provisions of the
Indenture to facilitate the issuance of, or to liberalize certain terms of, Debt
Securities in bearer form, or to permit or facilitate the issuance of Debt
Securities in uncertificated form, provided that such action shall not adversely
affect the interest of the Holders of the Debt Securities of any series in any
material respect; (v) to change or eliminate any provisions of the Indenture,
provided that any such change or elimination shall become effective only when
there are no Debt Securities Outstanding of any series created prior thereto
which are entitled to the benefit of such provisions; (vi) to secure the Debt
Securities; (vii) to establish the form or terms of Debt Securities of any
series, including the provisions and procedures, if applicable, for the
conversion of such Debt Securities into Common Stock or Preferred Stock of the
Company; (viii) to provide for the acceptance of appointment by a successor
Trustee or facilitate the administration of the trusts under the Indenture by
more than one Trustee; (ix) to cure any ambiguity, correct or supplement any
provision which may be defective or inconsistent or make any other provisions
with respect to matters or questions arising under the Indenture, provided that
such action shall not adversely affect the interests of Holders of Debt
Securities of any series in any material respect; or (x) to supplement any of
the provisions of the Indenture to the extent necessary to permit or facilitate
defeasance and discharge of any series of such Debt Securities, provided that
such action shall not adversely affect the interests of the Holders of the Debt
Securities of any series in any material respect (Section 9.1).
The Indenture provides that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of Holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
shall be deemed to be outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity thereof; (ii) the principal amount
of a Debt Security denominated in a Foreign Currency that shall be deemed
outstanding shall be the U.S. dollar equivalent, determined on the issue date
for such Debt Security, of the principal amount (or, in the case of an Original
Issue Discount Security, the U.S. dollar equivalent on the issue date of such
Debt Security of the amount determined as provided in (i) above); (iii) the
principal amount of an Indexed Security that shall be deemed outstanding shall
be the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Indexed Security pursuant to
Section 3.1 of the Indenture; and (iv) Debt Securities owned by the Company or
any other obligor upon the Debt Securities or any Affiliate of the Company or
such other obligor shall be disregarded (Section 1.1).
The Indenture contains provisions for convening meetings of the Holders
of Debt Securities of a series (Section 15.1). A meeting may be called at any
time by the Trustee and also, upon request, by the Company or the Holders of at
least 10% in principal amount of the Outstanding Debt Securities of such series,
in any such case upon notice given as provided in the Indenture (Section 15.2).
Except for any consent that must be given by the Holder of each Debt Security
affected by certain modifications and amendments of the Indenture, any
resolution presented at a meeting or adjourned meeting duly reconvened at which
a quorum is present may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Debt Securities of that series;
provided, however, that, except as referred to above any resolution with respect
to any request, demand, authorization, direction, notice, consent, waiver or
other action that may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Debt Securities of a
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series may be adopted at a meeting or adjourned meeting duly reconvened at which
a quorum is present by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Debt Securities of that
series. Any resolution passed or decision taken at any meeting of Holders of
Debt Securities of any series duly held in accordance with the Indenture will be
binding on all Holders of Debt Securities of that series. The quorum at any
meeting called to adopt a resolution, and at any reconvened meeting, will be
Persons holding or representing a majority in principal amount of the
Outstanding Debt Securities of a series; provided, however, that if any action
is to be taken at such meeting with respect to a consent or waiver which may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Debt Securities of a series, the Persons holding or
representing such specified percentage in principal amount of the Outstanding
Debt Securities of such series will constitute a quorum (Section 15.4).
Notwithstanding the foregoing provisions, if any action is to be taken
at a meeting of Holders of Debt Securities of any series with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action that the Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage in principal amount of all Outstanding Debt
Securities affected thereby, or of the Holders of such series and one or more
additional series: (i) there shall be no minimum quorum requirement for such
meeting; and (ii) the principal amount of the Outstanding Debt Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into account
in determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under the
Indenture (Section 15.4).
Discharge, Defeasance and Covenant Defeasance
The Company may discharge certain obligations to Holders of any series
of Debt Securities that have not already been delivered to the Trustee for
cancellation and that either have become due and payable or will become due and
payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the Trustee, in trust, funds in such currency or
currencies, currency unit or units or composite currency or currencies in which
such Debt Securities are payable in an amount sufficient to pay the entire
indebtedness on such Debt Securities in respect of principal (and premium, if
any) and interest to the date of such deposit (if such Debt Securities have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be (Section 4.1).
The Indenture provides that, if the provisions of Article Fourteen are
made applicable to the Debt Securities of or within any series pursuant to
Section 14.4 of the Indenture, the Company may elect either (a) to defease and
be discharged from any and all obligations with respect to such Debt Securities
(except for the obligation to pay Additional Amounts, if any, upon the
occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such Debt Securities and the obligations to register the
transfer or exchange of such Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to maintain an office or agency in
respect of such Debt Securities and to hold moneys for payment in trust)
("Defeasance") (Section 14.2) or (b) to be released from its obligations with
respect to such Debt Securities under Section 10.4 to 10.10, inclusive, of the
Indenture (being the restrictions described under "Certain Covenants") or, if
provided pursuant to Section 3.1 of the Indenture, its obligations with respect
to any other covenant, and any omissions to comply with such obligations shall
not constitute a default or an Event of Default with respect to such Debt
Securities ("Covenant Defeasance") (Section 14.3), in either case upon the
irrevocable deposit by the Company with the Trustee, in trust, of an amount, in
such currency or currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are payable at Stated Maturity, or
Governmental Obligations (as defined below), or both, applicable to such Debt
Securities which through the scheduled payment of principal and interest in
accordance with their terms will provide money in an amount sufficient to pay
the principal of (and premium, if any) and interest on such Debt Securities, and
any mandatory sinking fund or analogous payments thereon, on the scheduled due
dates therefor.
Such a trust may only be established if, among other things, the
Company has delivered to the Trustee an Opinion of Counsel (as specified in the
Indenture) to the effect that the Holders of such Debt
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Securities will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such Defeasance or Covenant Defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Defeasance or Covenant
Defeasance had not occurred, and such Opinion of Counsel, in the case of
Defeasance, must refer to and be based upon a ruling of the Internal Revenue
Service or a change in applicable United States federal income tax law occurring
after the date of the Indenture (Section 14.4).
"Governmental Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Debt Securities of a particular series are
payable, for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued
the Foreign Currency in which the Debt Securities or 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 the 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 (Section 1.1).
Unless otherwise provided in the applicable Prospectus Supplement, if
after the Company has deposited funds and/or Government Obligations to effect
Defeasance or Covenant Defeasance with respect to Debt Securities of any series,
(a) the Holder of a Debt Security of such series is entitled to, and does, elect
pursuant to Section 14.5 of the Indenture or the terms of such Debt Security to
receive payment in a currency, currency unit or composite currency other than
that in which such deposit has been made in respect of such Debt Security, or
(b) a Conversion Event (as defined below) occurs in respect of the currency,
currency unit or composite currency in which such deposit has been made, the
indebtedness represented by such Debt Security shall be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of
(and premium, if any) and interest on such Debt Security as they become due out
of the proceeds yielded by converting the amount so deposited in respect of such
Debt Security into the currency, currency unit or composite currency in which
such Debt Security becomes payable as a result of such election or such
cessation of usage based on the applicable market exchange rate (Section 14.5).
"Conversion Event" means the cessation of use of (i) a currency, currency unit
or composite currency both by the government of the country which issued such
currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community, (ii) the
ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities or
(iii) any currency unit or composite currency other than the ECU for the
purposes for which it was established. Unless otherwise provided in the
applicable Prospectus Supplement, all payments of principal of (and premium, if
any) and interest on any Debt Security that is payable in Foreign Currency that
ceases to be used by its government of issuance shall be made in U.S. dollars
(Section 1.1).
In the event the Company effects Covenant Defeasance with respect to
any Debt Securities and such Debt Securities are declared due and payable
because of the occurrence of any Event of Default other than the Event of
Default described in clause (d) under "Events of Default, Notice and Waiver"
with respect to Sections 10.4 to 10.10, inclusive, of the Indenture (which
Sections would no longer be applicable to such Debt Securities) or described in
clause (g) under "Events of Default, Notice and Waiver" with respect to any
other covenant as to which there has been Covenant Defeasance, the amount in
such currency, currency unit or composite currency in which such Debt Securities
are payable, and Government Obligations on deposit with the Trustee, will be
sufficient to pay amounts due on such Debt Securities at the time of their
Stated Maturity but may not be sufficient to pay amounts due on such Debt
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Securities at the time of the acceleration resulting from such Event of Default.
However, the Company would remain liable to make payment of such amounts due at
the time of acceleration.
The applicable Prospectus Supplement may further describe the
provisions, if any, permitting such Defeasance or Covenant Defeasance, including
any modifications to the provision described above, with respect to the Debt
Securities of or within a particular series.
Conversion Rights
The terms and conditions, if any, upon which the Debt Securities are
convertible into Common Stock, Preferred Stock or Debt Securities of another
series will be set forth in the applicable Prospectus Supplement relating
thereto. Such terms will include whether such Debt Securities are convertible
into Common Stock, Preferred Stock or Debt Securities of another series, the
conversion price (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the Holders or the
Company, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of such Debt
Securities. To protect the Company's status as a REIT, a Holder may not convert
any Debt Security, and such Debt Security shall not be convertible by any
Holder, if as a result of such conversion any person would then be deemed to
own, directly or indirectly, more than 9.9% of the Company's Common Stock.
Global Securities
The Debt Securities of a series may be issued in whole or in part in
the form of one or more global securities (the "Global Securities") that will be
deposited with, or on behalf of, a depository (the "Depository") identified in
the applicable Prospectus Supplement relating to such series. Global Securities
may be issued in either registered or bearer from and in either temporary or
permanent form. The specific terms of the depository arrangement with respect to
a series of Debt Securities will be described in the applicable Prospectus
Supplement relating to such series. The laws of some jurisdictions require that
certain purchasers of securities take physical delivery as such securities in
definitive form. Such laws may impair the ability to transfer beneficial
interests in Debt Securities represented by Global Securities.
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities, Preferred Stock or Common Stock. Securities Warrants may be issued
independently or together with any other Offered Securities offered by any
Prospectus Supplement and may be attached to or separate from such Offered
Securities. Each series of Securities Warrants will be issued under a separate
warrant agreement (each, a "Warrant Agreement") to be entered into between the
Company and a warrant agent specified in the applicable Prospectus Supplement
(the "Warrant Agent"). The Warrant Agent will act solely as an agent of the
Company in connection with the Securities Warrants of such series and will not
assume any obligations or relationship of agency or trust for or with any
holders or beneficial owners of Securities Warrants. The following summaries of
certain provisions of the Securities Warrant Agreement and the Securities
Warrants do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, all the provisions of the Securities Warrant
Agreement and the Securities Warrant certificates relating to each series of
Securities Warrants which will be filed with the Commission and incorporated by
reference as an exhibit to the Registration Statement of which this Prospectus
is a part at or prior to the time of the issuance of such series of Securities
Warrants.
If Securities Warrants are offered, the applicable Prospectus
Supplement will describe the terms of the Securities Warrants, including, in the
case of Securities Warrants for the purchase of Debt Securities, the following
where applicable: (i) the offering price; (ii) the denominations and terms of
the series of Debt Securities purchasable upon exercise of such Securities
Warrants; (ii) the designation and terms of any series of Debt Securities with
which such Securities Warrants are being offered and the number of such
Securities Warrants being offered with such Debt Securities; (iv) the date, if
any, on and
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after which such Securities Warrants and the related series of Debt Securities
will be transferable separately; (v) the principal amount of the series of Debt
Securities purchasable upon exercise of each such Securities Warrant and the
price at which such principal amount of Debt Securities shall be purchasable;
(vi) the date on which the right to exercise such Securities Warrants shall
commence and the date on which such right shall expire (the "Expiration Date");
(vii) whether the Securities Warrants will be issued in registered or bearer
form; (viii) all material United States federal income tax consequences; (ix)
the terms, if any, on which the Company may accelerate the date by which the
Securities Warrants must be exercised; and (x) any other material terms of such
Securities Warrants.
In the case of Securities Warrants for the purchase of Preferred Stock
or Common Stock, the applicable Prospectus Supplement will describe the terms of
such Securities Warrants, including the following where applicable: (i) the
offering price; (ii) the aggregate number of shares purchasable upon exercise of
such Securities Warrants, the exercise price, and in the case of Securities
Warrants for Preferred Stock, the designation, aggregate number and terms of the
series of Preferred Stock purchasable upon exercise of such Securities Warrants;
(iii) the designation and terms of any series of Preferred Stock with which such
Securities Warrants are being offered and the number of such Securities Warrants
being offered with such Preferred Stock; (iv) the date, if any, on and after
which such Securities Warrants and the related series of Preferred Stock or
Common Stock will be transferable separately; (v) the date on which the right to
exercise such Securities Warrants shall commence and the Expiration Date; (vi)
any special United States federal income tax consequences; and (vii) any other
material terms of such Securities Warrants.
Securities Warrant certificates may be exchanged for new Securities
Warrant certificates of different denominations, may (if in registered form) be
presented for registration of transfer, and may be exercised at the corporate
trust office of the Securities Warrant Agent or any other office indicated in
the applicable Prospectus Supplement. Prior to the exercise of any Securities
Warrant to purchase Debt Securities, holders of such Securities Warrants will
not have any of the rights of holders of the Debt Securities purchasable upon
such exercise, including the right to receive payments of principal, premium, if
any, or interest, if any, on such Debt Securities or to enforce covenants in the
applicable indenture. Prior to the exercise of any Securities Warrants to
purchase Preferred Stock or Common Stock, holders of such Securities Warrants
will not have any of the rights of holders of the Preferred Stock or Common
Stock purchasable upon such exercise, including the right to receive payments of
dividends, if any, on such Preferred Stock or Common Stock, or to exercise any
applicable right to vote.
Exercise of Securities Warrants
Each Securities Warrant will entitle the holder thereof to purchase
such principal amount of Debt Securities or number of shares of Preferred Stock
or Common Stock, as the case may be, at such exercise price as shall in each
case be set forth in, or calculable from, the Prospectus Supplement relating to
the offered Securities Warrants. After the close of business on the Expiration
Date (or such later date to which such Expiration Date may be extended by the
Company), unexercised Securities Warrants will become void.
Securities Warrants may be exercised by delivering to the Securities
Warrant Agent payment as provided in the applicable Prospectus Supplement of the
amount required to purchase the Debt Securities, Preferred Stock or Common
Stock, as the case may be, purchasable upon such exercise together with certain
information set forth on the reverse side of the Securities Warrant certificate.
Securities Warrants will be deemed to have been exercised upon receipt of
payment of the exercise price, subject to the receipt within five (5) business
days of the Securities Warrant certificate evidencing such Securities Warrants.
Upon receipt of such payment and the Securities Warrant certificate properly
completed and duly executed at the corporate trust office of the Securities
Warrant Agent or any other office indicated in the applicable Prospectus
Supplement, the Company will, as soon as practicable, issue and deliver the Debt
Securities, Preferred Stock or Common Stock, as the case may be, purchasable
upon such exercise. If fewer than all of the Securities Warrants represented by
such Securities Warrant certificate are
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exercised, a new Securities Warrant certificate will be issued for the remaining
amount of Securities Warrants.
Amendments and Supplements to Warrant Agreement
The Warrant Agreement(s) may be amended or supplemented without consent
of the holders of the Securities Warrants issued thereunder to effect changes
that are not inconsistent with the provisions of the Securities Warrants and
that do not adversely affect the interests of the holders of the Securities
Warrants.
Adjustments
Unless otherwise indicated in the applicable Prospectus Supplement, the
exercise price of, and the number of shares of Common Stock covered by, a Common
Stock Warrant are subject to adjustment in certain events, including (i) payment
of a dividend on the Common Stock payable in shares of Common Stock and stock
splits, combinations or reclassifications of Common Stock; (ii) issuance to all
holders of Common Stock of rights or warrants to subscribe for or purchase
shares of Common Stock at less than their current market price (as defined in
the Warrant Agreement for such series of Common Stock Warrants); and (iii)
certain distributions of evidences of indebtedness or assets (including
securities but excluding cash dividends or distributions paid out of
consolidated earnings or retained earnings or dividends payable in Common Stock)
or of subscription rights and warrants (excluding those referred to above).
No adjustment in the exercise price of, and the number of shares of
Common Stock covered by, a Common Stock Warrant will be made for regular or
quarterly or other periodic or recurring cash dividends or distributions or for
cash dividends or distributions to the extent paid from consolidated earnings or
retained earnings. No adjustment will be required unless such adjustment would
require a change of at least 1% in the exercise price then in effect. Except as
stated above, the exercise price of, and the number of shares of Common Stock
covered by, a Common Stock Warrant will not be adjusted for the issuance of
shares of Common Stock or any securities convertible into or exchangeable for
shares of Common Stock, or carrying the right or option to purchase or otherwise
acquire the foregoing, in exchange for cash, other property or services.
In the event of any (i) consolidation or merger of the Company with or
into any entity (other than a consolidation or merger that does not result in
any reclassification, conversion, exchange or cancellation of outstanding shares
of Common Stock); ((ii) sale, transfer, lease or conveyance of all or
substantially all of the assets of the Company; or (iii) reclassification,
capital reorganization or change of the Common Stock (other than solely a change
in par value or from par value to no par value), then any holder of a Common
Stock Warrant will be entitled, on or after the occurrence of any such event, to
receive on exercise of such Common Stock Warrant the kind and amount of shares
of stock or other securities, cash or other property (or any combination
thereof) that the holder would have received had such holder exercised such
holder's Common Stock Warrant immediately prior to the occurrence of such event.
If the consideration to be received upon exercise of the Common Stock Warrant
following any such event consists of common stock of the surviving entity, then
from and after the occurrence of such event, the exercise price of such Common
Stock Warrant will be subject to the same anti-dilution and other adjustments
described in the second preceding paragraph, applied as if such common stock
were Common Stock.
PLAN OF DISTRIBUTION
The Offered Securities may be sold (i) through agents, (ii) through
underwriters, (iii) through dealers or (iv) directly to purchasers (through a
specific bidding or auction process or otherwise). The distribution of Offered
Securities may be effected from time to time in one or more transactions at a
fixed price or prices, which may be changed, or at market prices prevailing at
the time of sale, at prices relating to such prevailing market prices or at
negotiated prices.
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Offers to purchase the Offered Securities may be solicited by agents
designated by the Company from time to time. Any such agent involved in the
offer or sale of the Offered Securities will be named, and any commissions
payable by the Company to such agent will be set forth, in the Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its appointment.
Any such agent may be deemed to be an underwriter, as that term is defined in
the Securities Act, of the Offered Securities so offered and sold.
If an underwriter or underwriters are utilized in the sale of Offered
Securities, the Company will execute an underwriting agreement with such
underwriters at the time an agreement for such sale is reached, and the names of
the specific managing underwriter or underwriters, as well as any other
underwriters, and the terms of the transactions including compensation of the
underwriters and dealers, if any, will be set forth in the Prospectus
Supplement, which will be used by the underwriters to make resales of the
Offered Securities.
If a dealer is utilized in the sale of the Offered Securities, the
Company will sell such Offered Securities to the dealer, as principal. The
dealer may then resell such Offered Securities to the public at varying prices
to be determined by such dealer at the time of resale. The name of the dealer
and the terms of the transactions will be set forth in the Prospectus Supplement
relating thereto.
Offers to purchase the Offered Securities may be solicited directly by
the Company and sales thereof may be made by the Company directly to
institutional investors or others. The terms of any such sales, including the
terms of any bidding or auction prices, if utilized, will be described in the
Prospectus Supplement relating thereto.
Agents, underwriters and dealers may be entitled under agreements which
may be entered into with the Company to indemnification by the Company against
certain liabilities under the Securities Act, and any such agents, underwriters
or dealers, or their affiliates, may be customers of, engage in transactions
with or perform services for the Company in the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will
authorize agents and underwriters to solicit offers by certain institutions to
purchase Debt Securities from the Company at the public offering price set forth
in the Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date stated in the
Prospectus Supplement. Such Contracts will be subject to only those conditions
set forth in the Prospectus Supplement. A commission indicated in the Prospectus
Supplement will be paid to underwriters and agents soliciting purchases of Debt
Securities pursuant to Contracts accepted by the Company.
EXPERTS
The Consolidated Financial Statements of Berkshire Realty Company, Inc.
and its subsidiaries included in the Report on Form 10-K of the Company for the
fiscal year ended December 31, 1996, referred to above have been audited by
Coopers & Lybrand L.L.P., independent accountants, as set forth in their report
dated February 13, 1997 accompanying such financial statements, except for Note
Q, for which the date is February 28, 1997, and are incorporated herein by
reference in reliance upon the report of such firm, which report is given upon
their authority as experts in auditing and accounting.
Any financial statements and schedules hereafter incorporated by
reference in the Registration Statement of which this Prospectus is a part that
have been audited and are the subject of a report by independent accountants
will be so incorporated by reference in reliance upon such reports and upon the
authority of such firms as experts in accounting and auditing to the extent
covered by consents filed with the Commission.
-25-
<PAGE>
LEGAL MATTERS
The validity of the issuance of the Offered Securities will be passed
upon for the Company by Peabody & Brown, Boston, Massachusetts.
-26-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Registration fee to the SEC .............................$121,212
Printing expense......................................... 3,000
Accounting fees and expenses............................. 10,000
Legal fees and expenses.................................. 25,000
Miscellaneous expenses................................... 3,000
--------
Total....................................................$162,212
========
All fees and expenses are estimates except for the registration fee
to the SEC.
Item 15. Indemnification of Directors and Officers.
The Certificate of the Company provides for indemnification of the
Company's officers and Directors to the fullest extent permitted by Sections 145
and 102(b)(7) of the Delaware General Corporation Law and relieves the Directors
of certain monetary liabilities to the Company and its shareholders. In general,
Delaware law permits the Company to indemnify its officers and Directors so long
as they act in good faith and in a manner reasonably believed by them to be in,
or not opposed to, the best interests of the Company. Subject to the provisions
of Sections 145 and 102(b)(7) of the Delaware General Corporation Law, the
Company intends to indemnify its officers and Directors against losses,
liabilities and expenses (including attorneys' fees) incurred by them that are
related to their being officers or Directors of the Company.
The Company has purchased director and officer liability insurance for
the purpose of providing a source of funds to pay any indemnification described
above.
Item 16. Exhibits
Exhibit Numbers Description
--------------- -----------
*1.1 Form of Underwriting Agreement (for Common
Stock)
*1.2 Form of Underwriting Agreement (for Preferred
Stock)
*1.3 Form of Underwriting Agreement (for Debt
Securities)
**4.1 Restated Certificate of Incorporation of the
Company, as amended, incorporated by reference
to Exhibit 3.1 to the Company's Registration
Statement on Form S-4 and Exhibit 3.11 to
Post-Effective Amendment No. 1 thereto (File
No. 33-37592).
**4.2 By-Laws of the Company, as amended,
incorporated by reference to Exhibit 3.3 to the
Company's Annual Report on Form 10-K for the
year ended December 31, 1993 and Exhibit 3.4 to
the Annual Report on Form 10-K for the year
ended December 31, 1995 (File No. 10660).
**4.3 Form of Common Stock Certificate, incorporated
by reference to Exhibit 4.5 to the Company's
registration statement on Form S-4 (No.
33-37592), dated November 2, 1990, as amended
-27-
<PAGE>
4.4 Form of Indenture governing Debt Securities
*4.5 Form of Debt Security
*4.6 Form of Securities Warrant Agreement
*4.7 Form of Certificate of Designations with
respect to Preferences, Conversion and Other
Rights of Preferred Stock
*4.8 Form of Preferred Stock Certificate
5.1 Opinion Regarding Legality
12.1 Statements regarding computation of ratios
24.1 Consent of Coopers & Lybrand L.L.P.
*26.1 Form T-1 Statement of Eligibility and
Qualification
- ---------------------------
* To be filed by post-effective amendment or by a current report on Form 8-K
pursuant to the Securities Exchange Act of 1934, as appropriate.
** Previously filed.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any Prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the Prospectus any facts or events arising after
the effective date of the Registration Statement (or most recent
post-effective amendment thereof) which, individually, or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new Registration Statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
-28-
<PAGE>
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the Trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
(c) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant for expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the 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.
(e) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
Prospectus filed as part of this Registration Statement in reliance
upon Rule 430A and contained in a form of Prospectus filed by the
Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of Prospectus shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
-29-
<PAGE>
SIGNATURES
Pursuant to the requirement 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 its Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Boston, Massachusetts, on July 31, 1997.
BERKSHIRE REALTY COMPANY, INC.
By: Douglas Krupp
-------------------------------------------
Douglas Krupp, Chairman of the Board and
Director of Berkshire Realty Company, Inc.
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint Douglas Krupp, Laurence Gerber,
David F. Marshall and Marianne A. Pritchard jointly, and each of them severally,
his/her true and lawful agent and attorney-in-fact, with full power of
substitution and resubstitution, for him/her and in his/her name, place and
stead, in any and all capacities, to execute and sign any or all amendments or
post-effective amendments to this Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection therewith or in
connection with the registration of the shares of Preferred Stock, the Debt
Securities and the Securities Warrants under the Securities Exchange Act of
1934, with the Securities and Exchange Commission, granting unto each of such
attorneys-in-fact and agents full power and authority to do and person each and
every act and thing requisite and necessary in connection with such matters as
fully to all intents and purposes as he/she might or could do in person, hereby
ratifying and confirming all that each such agent or attorney-in-fact and
his/her substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Douglas Krupp Chairman of the Board and Director of Berkshire July 31, 1997
- ------------------------------------ Realty Company, Inc.
Douglas Krupp
David F. Marshall President, Chief Executive Officer and Director July 31, 1997
- ------------------------------------- of Berkshire Realty Company, Inc.
David F. Marshall
Marianne Pritchard Senior Vice President and Chief Financial July 31, 1997
- ------------------------------------- Officer of Berkshire Realty Company, Inc.
Marianne Pritchard
J. Paul Finnegan Director of Berkshire Realty Company, Inc. July 31, 1997
- -------------------------------------
J. Paul Finnegan
-30-
<PAGE>
Laurence Gerber Director of Berkshire Realty Company, Inc. July 31, 1997
- -----------------------------------
Laurence Gerber
Charles N. Goldberg Director of Berkshire Realty Company, Inc. July 31, 1997
- -----------------------------------
Charles N. Goldberg
E. Robert Roskind Director of Berkshire Realty Company, Inc. July 31, 1997
- -------------------------------------
E. Robert Roskind
David M. deWilde Director of Berkshire Realty Company, Inc. July 31, 1997
- ------------------------------------
David M. deWilde
</TABLE>
-31-
<PAGE>
Exhibit Index to Registration Statement on Form S-3
The following exhibits are filed as part of this Registration Statement on Form
S-3.
Exhibit Numbers Description
--------------- -----------
*1.1 Form of Underwriting Agreement (for Common Stock)
*1.2 Form of Underwriting Agreement (for Preferred Stock)
*1.3 Form of Underwriting Agreement (for Debt Securities)
**4.1 Restated Certificate of Incorporation of the Company, as
amended, incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-4 and Exhibit
3.11 to Post-Effective Amendment No. 1 thereto (File No.
33-37592).
**4.2 By-Laws of the Company, as amended, incorporated by
reference to Exhibit 3.3 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1993 and Exhibit
3.4 to the Annual Report on Form 10-K for the year ended
December 31, 1995 (File No. 10660).
**4.3 Form of Common Stock Certificate, incorporated by
reference to Exhibit 4.5 to the Company's registration
statement on Form S-4 (No. 33-37592), dated November 2,
1990, as amended
4.4 Form of Indenture governing Debt Securities
*4.5 Form of Debt Security
*4.6 Form of Securities Warrant Agreement
*4.7 Form of Certificate of Designations with respect to
Preferences, Conversion and Other Rights of Preferred
Stock
*4.8 Form of Preferred Stock Certificate
5.1 Opinion Regarding Legality
12.1 Statements regarding computation of ratios
24.1 Consent of Coopers & Lybrand L.L.P.
*26.1 Form T-1 Statement of Eligibility and Qualification
- ---------------------------
* To be filed by post-effective amendment or by a current report on Form 8-K
pursuant to the Securities Exchange Act of 1934, as appropriate.
** Previously filed.
-32-
Exhibit 4.4
----------------------------------------------------------------------
BERKSHIRE REALTY COMPANY, INC.,
as Issuer
and
----------------------------------,
as Trustee
INDENTURE
Dated as of ____________, ____
Debt Securities
----------------------------------------------------------------------
<PAGE>
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture for Berkshire Realty
Company, Inc.:
Section of Act Section of Indenture
-------------- --------------------
310 (a)(1).........................................6.8
310 (a)(2).........................................6.8
310 (a)(3)..............................Not Applicable
310 (a)(4)..............................Not Applicable
310 (a)(5).........................................6.8
310 (h)............................................6.9
310 (c).................................Not Applicable
311 (a)...........................................6.13
311 (b)...........................................6.13
311 (c).................................Not Applicable
312 (a)............................................7.4
312 (b)............................................7.1
312 (c)............................................7.1
313 (a)............................................7.2
313 (h)(1)..............................Not Applicable
313 (b)(2).........................................7.2
313 (c)............................................7.2
313 (d)............................................7.2
314 (a)............................................7.3
314 (a)(4)........................................11.1
314 (b).................................Not Applicable
314 (c)(1).........................................1.2
314 (c)(2).........................................1.2
314 (c)(3)..............................Not Applicable
314 (d).................................Not Applicable
314 (e)............................................1.2
314 (f).................................Not Applicable
315 (a)............................................6.3
315 (b)....................................6.2 and 6.3
315 (c)............................................6.3
315 (d)............................................6.3
315 (e)............................................1.2
316 (a)(1)(A).............................5.2 and 5.12
316 (a)(1)(B).....................................5.13
316 (a) last sentence..............1.1 ("Outstanding")
316 (b)............................................5.8
316 (c)............................................1.4
317 (a)(1).........................................5.3
317 (a)(2).........................................5.4
<PAGE>
317 (b)...........................................10.3
318 (a)...........................................1.12
----------
This tie-sheet does not constitute a part of the Indenture.
Attention should also be directed to Section 3.18(c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including 317 of the
Act are a part of and govern every qualified indenture whether or not physically
contained therein.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION...............................................1
Section 1.1 Definitions.................................................................................1
Section 1.2 Compliance Certificates and Opinions........................................................8
Section 1.3 Form of Documents Delivered to Trustee......................................................9
Section 1.4 Acts of Holders.............................................................................9
Section 1.5 Notices, etc. to Trustee and Company.......................................................11
Section 1.6 Notice to Holders; Waiver..................................................................11
Section 1.7 Communication by Holders with Other Holders................................................12
Section 1.8 Effect of Headings and Table of Contents...................................................12
Section 1.9 Successors and Assigns.....................................................................13
Section 1.10 Severability Clause........................................................................13
Section 1.11 Benefits of Indenture......................................................................13
Section 1.12 Governing Law..............................................................................13
Section 1.13 Legal Holidays.............................................................................13
ARTICLE II. SECURITIES FORM.....................................................................................13
Section 2.1 Forms of Securities........................................................................13
Section 2.2 Form of Trustee's Certificate of Authentication............................................14
Section 2.3 Securities Issuable in Global Form.........................................................14
ARTICLE III. THE SECURITIES.....................................................................................15
Section 3.1 Amount Unlimited; Issuable in Series.......................................................15
Section 3.2 Denominations..............................................................................19
Section 3.3 Execution, Authentication, Delivery and Dating.............................................19
Section 3.4 Temporary Securities.......................................................................21
Section 3.5 Registration, Registration of Transfer and Exchange........................................21
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities...........................................24
Section 3.7 Payment of Interest; Interest Rights Preserved.............................................25
Section 3.8 Persons Deemed Owners......................................................................27
Section 3.9 Cancellation...............................................................................27
Section 3.10 Computation of Interest....................................................................28
ARTICLE IV. SATISFACTION AND DISCHARGE..........................................................................28
Section 4.1 Satisfaction and Discharge of Indenture....................................................28
Section 4.2 Application of Trust Funds.................................................................29
ARTICLE V. REMEDIES.............................................................................................30
Section 5.1 Events of Default..........................................................................30
Section 5.2 Acceleration of Maturity; Rescission and Annulment.........................................31
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee............................33
Section 5.4 Trustee May File Proofs of Claim...........................................................34
Section 5.5 Trustee May Enforce Claims Without Possession of Securities
or Coupons.................................................................................34
-i-
<PAGE>
Section 5.6 Application of Money Collected.............................................................35
Section 5.7 Limitation on Suits........................................................................35
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium,
if any, and Interest and Additional Amounts................................................36
Section 5.9 Restoration of Rights and Remedies.........................................................36
Section 5.10 Rights and Remedies Cumulative.............................................................36
Section 5.11 Delay or Omission Not Waiver...............................................................36
Section 5.12 Control by Holders of Securities...........................................................37
Section 5.13 Waiver of Past Defaults....................................................................37
Section 5.14 Waiver of Usury, Stay or Extension Laws....................................................37
Section 5.15 Undertaking for Costs......................................................................37
ARTICLE VI. THE TRUSTEE.........................................................................................38
Section 6.1 Certain Duties and Responsibilities........................................................38
Section 6.2 Notice of Defaults.........................................................................39
Section 6.3 Certain Rights of Trustee..................................................................39
Section 6.4 Not Responsible for Recitals or Issuance of Securities.....................................40
Section 6.5 May Hold Securities........................................................................41
Section 6.6 Money Held in Trust........................................................................41
Section 6.7 Compensation, Reimbursement and Indemnity..................................................41
Section 6.8 Corporate Trustee Required; Eligibility; Conflicting Interests.............................42
Section 6.9 Resignation and Removal; Appointment of Successor..........................................42
Section 6.10 Acceptance of Appointment by Successor.....................................................43
Section 6.11 Merger, Conversion, Consolidation or Succession to Business................................44
Section 6.12 Appointment of Authenticating Agent........................................................45
Section 6.13 Preferential Collection of Claims Against Company..........................................46
ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY.....................................................................................................47
Section 7.1 Disclosure of Names and Addresses of Holders...............................................47
Section 7.2 Reports by Trustee.........................................................................47
Section 7.3 Reports by Company.........................................................................47
Section 7.4 Company to Furnish Trustee Names and Addresses of Holders..................................48
ARTICLE VIII. CONSOLIDATION, MERGER, SALE, LEASE
OR CONVEYANCE...................................................................................................48
Section 8.1 Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions........................................48
Section 8.2 Rights and Duties of Successor Corporation.................................................49
Section 8.3 Officer's Certificate and Opinion of Counsel...............................................49
ARTICLE IX. SUPPLEMENTAL INDENTURES.............................................................................49
Section 9.1 Supplemental Indentures Without Consent of Holders.........................................49
Section 9.2 Supplemental Indentures with Consent of Holders............................................51
Section 9.3 Execution of Supplemental Indentures.......................................................52
Section 9.4 Effect of Supplemental Indentures..........................................................52
Section 9.5 Conformity with Trust Indenture Act........................................................52
Section 9.6 Reference in Securities to Supplemental Indentures.........................................52
-ii-
<PAGE>
ARTICLE X. COVENANTS............................................................................................52
Section 10.1 Payment of Principal, Premium, if any, Interest and
Additional Amounts.........................................................................52
Section 10.2 Maintenance of Office or Agency............................................................53
Section 10.3 Money for Securities Payments to Be Held in Trust..........................................53
Section 10.4 [Reserved].................................................................................55
Section 10.5 [Reserved].................................................................................55
Section 10.6 Existence..................................................................................55
Section 10.7 Maintenance of Properties..................................................................55
Section 10.8 Insurance..................................................................................55
Section 10.9 Payment of Taxes and Other Claims..........................................................55
Section 10.10 Provision of Financial Information.........................................................55
Section 10.11 Statement as to Compliance.................................................................56
Section 10.12 Additional Amounts.........................................................................56
Section 10.12 Waiver of Certain Covenants................................................................57
ARTICLE XI. REDEMPTION OF SECURITIES............................................................................57
Section 11.1 Applicability of Article...................................................................57
Section 11.2 Election to Redeem; Notice to Trustee......................................................57
Section 11.3 Selection by Trustee of Securities to Be Redeemed..........................................57
Section 11.4 Notice of Redemption.......................................................................58
Section 11.5 Deposit of Redemption Price................................................................59
Section 11.6 Securities Payable on Redemption Date......................................................59
Section 11.7 Securities Redeemed in Part................................................................60
ARTICLE XII. SINKING FUNDS......................................................................................61
Section 12.1 Applicability of Article...................................................................61
Section 12.2 Satisfaction of Sinking Fund Payments with Securities......................................61
Section 12.3 Redemption of Securities for Sinking Fund..................................................61
ARTICLE XIII. REPAYMENT AT THE OPTION OF HOLDERS................................................................62
Section 13.1 Applicability of Article...................................................................62
Section 13.2 Repayment of Securities....................................................................62
Section 13.3 Exercise of Option.........................................................................62
Section 13.4 When Securities Presented for Repayment Become Due and Payable.............................63
Section 13.5 Securities Repaid in Part..................................................................64
ARTICLE XIV. DEFEASANCE AND COVENANT DEFEASANCE.................................................................64
Section 14.1 Applicability of Article; Company's Option in Effect Defeasance or
Covenant Defeasance........................................................................64
Section 14.2 Defeasance and Discharge...................................................................64
Section 14.3 Covenant Defeasance........................................................................65
Section 14.4 Conditions of Defeasance or Covenant Defeasance............................................65
Section 14.5 Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions.............................................................67
ARTICLE XV. MEETINGS OF HOLDERS OF SECURITIES...................................................................68
Section 15.1 Purposes for Which Meetings May Be Called..................................................68
Section 15.2 Call Notice and Place of Meetings..........................................................68
-iii-
<PAGE>
Section 15.3 Persons Entitled to Vote at Meetings.......................................................69
Section 15.4 Quorum; Action.............................................................................69
Section 15.5 Determination of Voting Rights; Conduct and
Adjournment of Meetings....................................................................70
Section 15.6 Counting Votes and Recording Action of Meetings............................................71
</TABLE>
-iv-
<PAGE>
INDENTURE, dated as of ___________ ___, _____, between BERKSHIRE REALTY
COMPANY, INC., a Delaware corporation (hereinafter called the "Company"), having
its principal office at 470 Atlantic Avenue, Boston, Massachusetts 02210, and
__________________________, as Trustee hereunder (hereinafter called the
"Trustee"), having its Corporate Trust Office at __________________________.
Each party hereto agrees as follows for the equal and proportionate
benefit of all Holders of the Securities.
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act" or "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;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles
("GAAP") as used in the United States applied on a consistent basis; and
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Additional Amounts" means any additional amounts which are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
<PAGE>
"Authenticating Agent" means any Person which shall at the time be
appointing and acting, pursuant to Section 6.12, as an agent of the Trustee to
authenticate Securities.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers, in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bearer Security" means any Security which is payable to bearer and,
unless the context otherwise requires, all coupons appertaining thereto.
"Board of Directors" means the board of directors of the Company, the
executive committee or any committee of that board duly authorized to act
hereunder.
"Board Resolution" means a duly adopted resolution of the Board of
Directors.
"Business Day" when used with respect to any Plan of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless, otherwise specified with respect to any Securities pursuant to
Section 3.1, 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.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" means, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
the President or a Vice President, its Treasurer or an Assistant Treasurer, the
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
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
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<PAGE>
(iii) any currency unit (or composite currency) other than the ECU for the
purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at __________________.
"Corporation," whether or not such term is capitalized, includes
corporations, associations, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of a global Security, the
Person designated as Depositary by the Company pursuant to Section 3.1 until a
successor Depositary shall have become such pursuant to the applicable
procedures of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one Person. "Depositary", as used with respect to the Securities of any
such series, shall mean the Depositary with respect to the Securities of that
series.
"Dollars" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"European Communities" means the European Economic Community, the
European Coal and the 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 Section 5.1.
"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.
"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
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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 depositary receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific holder of a depositary
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depositary receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name such Security is registered in the Security Register and, in the case
of a Bearer Security, the bearer thereof and, when used with respect to any
coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the form and terms of particular series of Securities
established as contemplated by Section 3.1; 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 3.1,
exclusive, however, of any provisions or terms which relate solely to other
series of Securities for which such Person is Trustee, regardless of when such
terms or provisions were adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such Person, as
such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 10.12,
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 hereon provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
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"Officer's Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President or a Vice President, the Treasurer or an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means written opinion of counsel, who may be
counsel for the Company or who may be an employee of or other counsel for the
Company.
"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 5.2.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder, money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections
14.2 and 14.3, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article 14;
(iv) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(v) Securities converted into Common Shares or Preferred
Shares pursuant to or in accordance with this Indenture if the terms of
such Securities provided for convertibility pursuant to Section 3.1;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Shares 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
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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 5.2, (ii) the principal amount of and 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 3.1 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 3.1, 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 is specified as
contemplated by Sections 3.1 and 10.2.
"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 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redemption Date," when used with respect to any Security to be
redeemed in whole or in part, means the date fixed for such redemption by or
pursuant to this indenture.
"Registered Security" shall mean any Security which is registered in
the Security Register.
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"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 3.1 whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such officer's knowledge and familiarity with the
particular subject.
"Security" 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 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 3.5.
"Special Record Date" for the payment of any Defaulted Interested on
the Securities of or within any series means a date fixed by the Trustee
pursuant to Section 3.7.
"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 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 by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force at the date of which this Indenture was executed,
except as provided in Section 9.5.
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"Trustee" means the Person named as "Trustee" in the first paragraph
of this Indenture, and thereafter "Trustee" shall mean or include each Person
who is then a Trustee hereunder; provided, however, that if any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean only the Trustee with respect to Securities of that
series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 3.1, the United States of America including 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 3.1, 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 1.2 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 as to which the furnishing of such documents
is specifically required by any provisions 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 shall include:
(a) A statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(b) 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;
(c) A statement that, in the opinion of each such individual, such
individual has made such examination or investigation as is necessary to enable
such individual to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
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(d) A statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 1.3 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 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 representatives 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 1.4 Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. If Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article 15, 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 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 shall be sufficient for any purpose of this Indenture,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of
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any 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 Person
acting in other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient, and the
Trustee may in any instance require further proof with respect to any of the
matters referred to in this Section.
(d) The principal amount and serial number of any Bearer Security held
by any Person, and the date of such Person's holding the same, may be proved by
the production of such Bearer Security or by a certificate executed, as
depositary, by any trust, company, bank 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 Security therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Security, 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 is surrendered in exchange for a Registered Security, or (4) such
Bearer Security is no longer Outstanding. The fact and date of execution of any
such instrument or writing, the authority of the Person executing the same and
the principal amount and serial number of any Bearer Security held by the Person
so executing such instrument or writing and the date of holding the same may
also be proved in any other manner which the Trustee deems sufficient; and the
Trustee may in any instance require further proof with respect to any of the
matters referred to in this Section.
The principal amount and serial numbers of Registered Securities
held by any Person, and the date of his holding the same, shall be proved by the
Securities Register.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by 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. 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 shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
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(f) Any request, demand, authorization, direction, notice, consent,
waiver, or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
Section 1.5 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,
(a) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if in a writing made, given, furnished to or filed with
the Trustee at its Corporate Trust Office, or
(b) 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 1.6 Notice to Holders; Waiver. Where this Indenture provides
for notice of any event to Holders of Registered Securities by the Company or
the Trustee unless otherwise expressly provided herein or in the Officer's
Certificate or supplemental indenture referred to in Section 5.1 with respect to
Securities of any series, such notice shall be sufficiently given if in writing
and mailed, first-class prepaid, to each 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 of Holders of Registered Securities is given by
mail, neither the failure to mail such notice, or any defect in any notice so
mailed, to any particular Holder shall reflect the sufficiency of any 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 any 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 of such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 3.1, where the Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in The City
of New York and in the other city or cities as may be specified in such
Securities on a Business Day, such publication to be no later than the
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latest date, and not earlier than the 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 1.7 Communication by Holders with Other Holders. Communication
among Holders with respect to their rights under this Indenture or the
Securities shall be made in accordance with the provisions of TIA ss. 312(b).
The Company, the Trustee, the Securities Registrar or any agent thereof shall be
afforded the protection provided under TIA ss. 312(c).
Section 1.8 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 1.9 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 1.10 Severability Clause. In case any provision in this
Indenture or in any Security 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 1.11 Benefits of Indenture. Nothing in this Indenture or in the
Securities, 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
rights, remedy or claim under this Indenture.
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Section 1.12 Governing Law. This Indenture and the Securities shall be
governed by and construed in accordance with the law of the Commonwealth of
Massachusetts. This Indenture is subject to the provisions of the TIA that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions
Section 1.13 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 thereof), 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 State 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.
ARTICLE II.
SECURITIES FORMS
Section 2.1 Forms of Securities. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be substantially the forms (including any global form) as shall be
established by or pursuant to a Board Resolution in one or more indentures
supplemental hereto or approved from time to time by or pursuant to a Board
Resolution in accordance with Section 3.1, shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or any indenture supplemental hereto (including such
other provisions as are necessary to reflect the global form of any Security,
and the designation of a Depositary for such Security), 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
Security may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 3.1, 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, as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
Section 2.2 Form of Trustee's Certificate of Authentication. Subject to
Section 6.11, the Trustee's certificate of authentication shall be in
substantially the following form:
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This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
[Name of Trustee],
as Trustee
By:_______________________
Authorized Signatory
Section 2.3 Securities Issuable in Global Form. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 3.1, then, notwithstanding the provisions of Sections 3.1 and 3.2, 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 principal amount of Outstanding Securities of such series from time to
time endorsed thereon and that the aggregate principal amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. The Securities in global form may be
permanent or temporary. Any endorsement of a Security in global form to reflect
the principal 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 3.3
or 3.4. Subject to the provisions of Section 3.3 and, if applicable, Section
3.4, 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 3.3 or 3.4 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 1.2 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.3 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 1.2 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 3.3.
Notwithstanding the provisions of this Indenture, unless otherwise
specified as contemplated by Section 3.1, payment of principal of and any
premium, if any, and interest on any Security in permanent global form shall be
made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a permanent global Security as
shall be specified in a written
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statement of the Depositary with respect to such permanent global Security, only
for purposes of obtaining any consents or directions required to be given by the
Holders pursuant to this Indenture.
Unless otherwise provided as contemplated by Section 3.1 with respect
to any series of Securities, any global Security shall provide, in addition to
the provisions established pursuant to Sections 2.1 and 3.1 and set forth in the
preceding paragraphs, that the Depositary will not sell, assign, transfer or
otherwise convey any beneficial interest in such global Security unless such
beneficial interest is in an amount equal to an authorized denomination for
Securities of each series, and that the Depositary, by accepting such global
Security, agrees to be bound by such provision. Any global Security shall also
contain such other provisions as are necessary to reflect the global form of
such Security and the designation of a Depositary for such global Security.
ARTICLE III.
THE SECURITIES
Section 3.1 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 3.3, set forth, or
determined in the manner provided, in an Officer's 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):
(a) the title of the Securities of the Series (which shall distinguish
the Securities of such series from all other series of Securities);
(b) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 9.6, 11.7 or 13.5);
(c) 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;
(d) 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
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basis upon which interest shall be calculated if other than that of a 360-day
year of twelve 30-day months;
(e) the place or places, if any, other than in or in addition to
Boston, Massachusetts, 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 and the method of such payment,
(f) 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;
(g) the obligation, if any, of the Company to redeem, repay or purchase
Securities of the series pursuant to any sinking fund or analogous provisions 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;
(h) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(i) the identity of the Trustee for the Securities of the series and,
if other than the Trustee, the identity of each Security Registrar and/or Paying
Agent for the Securities of the series;
(j) 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 5.2 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;
(k) 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;
(l) 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;
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(m) 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 (including the Election Date), 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;
(n) provisions, if any, granting special rights to the Holders of
Securities of the series upon the concurrence of such events as may be
specified;
(o) any deletions from, modification 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;
(p) 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 circumstances under which any such
exchanges may occur, if other than in the manner provided in Section 3.5, and,
if Registered Securities of the series are to be issuable as a global Security,
the identity of the depositary for such series;
(q) 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;
(r) 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 or an Interest
Payment Date will be paid if other than in the manner provided in Section 3.4;
(s) the applicability, if any, of Sections 14.2 and/or 14.3 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 14;
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(t) 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;
(u) if the Securities of the series are to be issued upon the exercise
of warrants, the time, manner and place for such Securities to be authenticated
and delivered;
(v) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 10.12 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);
(w) the obligation, if any, of the Company to permit the conversion of
the Securities of such series into 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 preservation of such shares for the purposes of
conversion;
(x) the ranking of such Securities; and
(y) 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 as
to denomination, currency, the rate or rates of interest, if any, and the
Maturity and except as may otherwise be provided in or pursuant to such Board
Resolution (subject to Section 3.3) and set forth in such Officer's 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 Officer's Certificate setting forth the terms of the Securities
of such series.
Section 3.2 Denominations. The Securities of each series shall
be issuable as Bearer Securities, as Registered Securities or in any combination
thereof, and in such denominations and amounts as shall be specified as
contemplated by Section 3.1. With respect to Securities of any series
denominated in Dollars, in the absence of any such provisions with respect to
the Securities of any series, the Securities of such series, other than
Securities issued in global form (which may be of any denomination), shall be
issuable in denominations of $1,000 and any integral multiple thereof.
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Section 3.3 Execution, Authentication, Delivery and Dating. The
Securities and any coupons appertaining thereto shall be executed on behalf of
the Company by its Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon, and attested by its
Secretary or one of its Assistant Secretaries. The signature of any or all of
these officers or the Securities and coupons may be manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signature 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. Such Company Order may
provide that Securities which are the subject thereof will be authenticated and
delivered by the Trustee upon the order of Persons designated in said Company
Order communicated to the Trustee in writing or by telephone or other means set
forth in such Company Order and that such Persons are authorized to determine
such terms and conditions of said Securities as are specified in the Company
Order.
If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental Indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula, maturity
date, date of issuance and the date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive and (subject to TIA Section 315(a) through 315(d)) shall be
fully protected in relying upon,
(i) an Opinion of Counsel stating that
(1) the form or forms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture;
(2) the terms of such Securities and any coupons have
been established in conformity with the provisions of this
Indenture; and
(3) 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
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constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting
the enforcement of creditors' rights generally and to general
equitable principles; and
(ii) an Officer's Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
the Securities have been complied with and that, to the best of the
knowledge of the signers of such certificate, that no Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 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 Officer's Certificate otherwise required
pursuant to Sections 3.1 or a Company Order, or an Opinion of Counsel or an
Officer's 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 3.1.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized officer, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9 together with a written statement (which
need not comply with Section 1.2 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 3.4 Temporary Securities. 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
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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, 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 services 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, 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. 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.
Section 3.5 Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee, or
in any office or agency of the Company in a Place of Payment a register for each
series of Securities (the registers maintained in such office or in any such
office or agency of the Company in a Place of Payment, being herein sometimes
referred to collectively as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. The Trustee, at its
Corporate Trust Office, is hereby initially appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities on such Security Register as herein provided. In the event that the
Trustee shall cease to be Security Registrar, it shall have the right to examine
the Security Register at all reasonable times.
Subject to the provisions of this Section 3.5, 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 3.5, 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 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
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contemplated by Section 3.1, 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 3.3) set forth in the applicable Officer's Certificate, or
in any indenture supplemental hereto, delivered as contemplated by Section 3.1,
at the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of payment; provided,
however, that, except as otherwise provided in Section 10.2, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office of 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 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 Default
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 3.1, any permanent global Security shall be exchangeable
only as provided in this paragraph. If any beneficial owner of an interest in a
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 3.1 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 the Depositary as shall be specified in the
Company Order with respect thereto to the Trustee,
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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 Default 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 or transfer or exchange of Securities, other than
exchanges pursuant to Sections 3.4, 4.6, 11.7 or 13.5 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 11.3 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.
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Section 3.6 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 of 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 coupon, 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 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 or
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 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, unless otherwise specified as contemplated by Section 3.1,
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.
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Section 3.7 Payment of Interest; Interest Rights Preserved. Except as
otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 3.1, 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 the Registered 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 10.2, unless interest is payable
at Maturity, in which case interest shall be paid to the Person entitled to
receive payment of the principal of such Registered Security at Maturity;
provided, however, that each installment of interest on any Registered Security
may at the Company's option be paid by mailing a check for such Interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 3.8, to the address of such Person as it appears on the Security.
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 3.1, 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 (therein 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 (a) or (b) below.
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of the proposed payment
(which shall not be less than 20 days after such notice is received by the
Trustee), and at the same time the Company shall deposit with the Trustee an
amount of money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 3.1 for the
Securities of such series) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after
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the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered Securities of such
series at his address as it appears in the Security Register not less than 10
days prior to such Special Record Date. The Trustee may, in its discretion, in
the name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper in each place of payment, but
such publications shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefore having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor Securities
are registered at the close of business on such Special Record Date and shall no
longer be payable at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of business
at such office or agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will not be
payable on such proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
(b) The 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
3.5, each Security delivered under this Indenture upon registration of transfer
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 3.8 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 3.5 and 3.7) 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
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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 or impair, as between such
Depositary as a Holder, with respect to such global Security 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 3.9 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 surrendered directly to the Trustee for any
such purpose shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. If the Company shall so
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. Cancelled Securities and coupons held by the Trustee shall be
destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to the Company, unless by a Company Order the Company directs their
return to it.
Section 3.10 Computation of Interest. Except as otherwise specified as
contemplated by Section 3.1 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 IV.
SATISFACTION AND DISCHARGE
Section 4.1 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, conversion or exchange of
Securities of such series herein expressly provided of
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and any right to receive Additional Amounts, as provided in Section 10.12), 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
(a) either
(i) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (1) coupons appertaining to
Bearer Securities surrendered for exchange of Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 3.5,
(2) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6, (3) coupons appertaining to Bearer
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 11.6, and (4) 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 10.3) have been
delivered to the Trustee for cancellation; or
(ii) all Securities of such series and, in the case
of (1) or (2) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation,
(1) have become due and payable, or
(2) will become due and payable at their
Stated Maturity within one year, or
(3) 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 (1), (2) or (3) 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 may have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
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(c) the Company has delivered to the Trustee an Officer's
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 6.7, the obligation of the Company to any authenticating Agent under
Section 6.12, and, if money shall have been deposited with and held by the
Trustee pursuant to subclause (ii) of clause (a) of this Section, the
obligations of the Trustee under Section 4.2 and the last paragraph of Section
10.3 shall survive.
Section 4.2 Application of Trust Funds. Subject to the provision of the
last paragraph of Section 10.3, all money deposited with the Trustee pursuant to
Section 4.1 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 V.
REMEDIES
Section 5.1 Events of Default. "Events 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):
(a) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of that series or of any
coupon appertaining thereto, when such interest or Additional Amounts or coupon
becomes due and payable, and continuance of such default for a period of 30
days; or
(b) default in the payment of the principal of (or premium, if
any, on) any Security of that series when it becomes due and payable at its
Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of any Security of that series; or
(d) 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 or which has
been expressly included in this Indenture solely for the benefit of a series of
Securities other than that series), and continuance of such default or breach
for a period of 60 days after there has been given, by registered or
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certified mail to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding Securities
of that series, a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) a default under any bond, debenture, note or other
evidence of indebtedness of the Company, or under any mortgage, indenture or
other instrument of the Company (including a default with respect to Securities
of any series other than that series) under which there may be issued or by
which there may be secured any indebtedness of the Company, whether such
indebtedness now exists or shall hereafter be created, which default shall
constitute a failure to pay an aggregate principal amount exceeding $10,000,000
of such indebtedness when due and payable after the expiration of any applicable
grace period with respect thereto and shall have resulted in such indebtedness
in an aggregate principal amount exceeding $10,000,000 becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, without such indebtedness having been discharged, or
such acceleration having been rescinded or annulled, within a period of 10 days
after there shall have been given by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder, or
(f) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a Custodian of
it or for all or substantially all of its property, or
(iv) makes a general assignment for the benefit of
its creditors; or
(g) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company in an
involuntary case,
(ii) appoints a Custodian of the Company or for all
or substantially all of its property, or
(iii) orders the liquidation of the Company and the
order or decree remains unstayed and in effect for 90 days, or
(h) any other Event of Default provided with respect to
Securities of that series.
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As used in this Section 5.1, 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 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall become immediately
due and payable.
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:
(a) the Company has paid or deposited with the Trustee a
sum sufficient to pay in the currency, currency unit or composite currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.1 for the Securities of such series):
(i) all overdue installments of interest on and any
Additional Amounts payable in respect of all outstanding
Securities of that series and any related coupons;
(ii) 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 rate borne by or provided for
in such Securities;
(iii) 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
(iv) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(b) all Events of Default with respect to Securities of
that series, other than the nonpayment of principal (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
5.13.
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No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or
rescission and annulment thereof, with respect to Securities of a series all or
part of which is represented by the global Security, the Trustee shall establish
a record date for determining Holders of Outstanding Securities of such series
entitled to join in such declaration of acceleration, or rescission and
annulment, as the case may be, which record date shall be at the close of
business on the day the Trustee receives such declaration of acceleration, or
rescission and annulment, as the case may be. The Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
join in such declaration of acceleration, or rescission and annulment, as the
case may be, whether or not such Holders remain Holders after such record date;
provided, that unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having been obtained prior to the date which is ninety (90)
days after such record date, such declaration of acceleration, rescission and
annulment, as the case may be, shall automatically without further action by any
Holder be cancelled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after expiration of such
ninety (90) day period, a new declaration of acceleration, or rescission or
annulment thereof, as the case may be, that is identical to a declaration of
acceleration, or rescission or annulment thereof, which has been cancelled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.2.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(a) default is made in the payment of any installment of
interest or Additional Amounts, if any, on any Security of any series and any
related coupon when such interest or Additional Amount becomes due and payable
and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security of the series at its Maturity or in the
deposit of any sinking fund payments, if any, when the same shall have become
payable,
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 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.
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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
or such series and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
and of the exercise of any power granted herein, or to enforce any other
property remedy.
Section 5.4 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:
(a) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series,
of principal (and premium, 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
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator or sequestrator (or
other similar official), in any such judicial or other 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 6.7.
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
compensation affecting the Securities or the
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right 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 5.5 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 5.6 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 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 6.7;
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 or any
other Person or Persons entitled thereto.
Section 5.7 Limitation on Suits. No Holder of any Security of
any series or any related coupons shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(a) Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
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(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding, and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture 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 5.8 Unconditional Right of Holders to Receive Principal,
Premium, if any, and Interest and Additional Amounts. Notwithstanding any other
provision to this Indenture, the Holder of any Security or coupon shall have the
right which is absolute and unconditional to receive a payment of the principal
of (and premium, if an) and (subject to Sections 3.5 and 3.7) 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 5.9 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 5.10 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 3.6, 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 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 5.11 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
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as often as may be deemed expedient, by the Trustee or by the Holders of
Securities or coupons, as the case may be.
Section 5.12 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 exercise any trust or
power conferred on the Trustee with respect to the Securities of such series,
provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) the Trustee need not take any action which might invoice
it in personal liability or be unduly prejudicial to the Holders of Securities
of such series not joining therein.
Section 5.13 Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(a) in the payment of the principal (or premium, if any) or
interest on or Additional Amounts payable in respect of any Security of such
series or any related coupons, or
(b) in respect of a covenant or provision hereof which under
Article 9 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 5.14 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, or 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 5.15 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
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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, if any, on any Security on or
after the respective Stated Maturities expressed in such Security (or) in the
case of redemption, on or after the Redemption Date.
ARTICLE VI.
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and, to the extent lawful, no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions express
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee; the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(i) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
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(iii) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of that
series; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers
if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 6.2 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 specified under Section 1.6 to all Holders of
Securities of the series, 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 of
such notice if and so long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
of the Securities and coupons of such series; and provided, further that in the
case of any default or breach of the character specified in Section 5.1(d) with
respect to the Securities and coupons of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to the Securities of such series.
Section 6.3 Certain Rights of Trustee. Subject to the provisions of TIA
Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, directions, consent, order, bond, debenture, note,
coupon or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 3.3 which shall be
sufficiently evidenced
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as provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be provided 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 as Officer's Certificate;
(d) the Trustee may consult with counsel, and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Securities of any series or any related coupons pursuant
to this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) 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, 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.
Section 6.4 Not Responsible for Recitals or Issuance of Securities. The
recitals contained in the Securities, except the Trustee's certificate of
authentication, 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 acceptable for the use
or application by the Company of Securities or the proceeds thereof.
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Section 6.5 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 6.6 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. Such amounts shall be invested by the Trustee solely at the written
direction of the Company. The Trustee shall be under no liability for interest
on any money received by it hereunder except as otherwise agreed with the
Company.
Section 6.7 Compensation, Reimbursement and Indemnity. The Company
agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(c) to indemnify each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its own part,
arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. When
the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.1(c) or Section 5.1(f), 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.
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Section 6.8 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 (a)(5) and shall have
a combined capital and surplus of at least $100,000,000. 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.
The Trustee shall at all times be subject to the conflict of
interest provisions of TIA Section 310(b), including the optional provision of
TIA Section 310(b)(9), permitted by the second sentence thereof. Furthermore,
the conflict of interest provisions of TIA Section 310(b)(1) regarding conflicts
arising between different indentures shall also apply to any conflicts arising
between series of Securities issued under this Indenture.
Section 6.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.10.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If any
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(i) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder of a Security who has been a bona fide Holder of a Security
for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.8
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
(iii) 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, (1) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (2) subject to
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TIA Section 315(c), any Holder of a Security who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company by or pursuant to a
Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities or more
of 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 redesignation, removal or incapability, or the occurrence of such vacancy,
a successor Trustee with respect to the Securities of any series shall be
appointed by Act of the holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months, may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided for notices to the Holders of Securities in Section 1.6. 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 6.10 Acceptance of Appointment by Successor. (a) In case
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee, but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts and duties 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 6.7;
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
pursuant to Article 9 hereof, wherein each
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successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to and to
vest in, each successor Trustee all the rights, powers, trust and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance successor Trustee shall be qualified and eligible under
this Article.
Section 6.11 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 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.
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Section 6.12 Appointment of Authenticating Agent. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Company. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and, except as may otherwise be provided pursuant to Section 3.1, shall
at all times be a bank or trust company or corporation organized and doing
business and in good standing under the laws of the United States of America or
of any State or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authorities. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or the requirements of the aforesaid supervising
or examining authority, then for the purpose of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 1.6. 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
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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 herein referred to
in the within mentioned Indenture.
[Name of Trustee],
as Trustee
By:_____________________________
as Authenticating Agent
By:_____________________________
Authorized Signatory
Section 6.13 Preferential Collection of Claims against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated in
Section 311(a).
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 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 7.2 Reports by Trustee. Within 60 days after May 15 of
each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in TIA Section 313(c) a brief report dated as
of such May 15 if required by TIA Section 313(a).
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The Trustee shall also comply with TIA Section 313(b)(2). A copy of each report
shall, at the time of transmission to Holders of Securities, be filed with each
stock exchange upon which the indenture securities are listed, and also with the
Commission.
Section 7.3 Reports by Company. The Company will:
(a) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or reports
pursuant to either of such Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such
rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(c) transmit by mail to the Holders of Securities, within 30 days after
the filing thereof with the 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 paragraph (a) and (b) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
Section 7.4 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, semiannually,
upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series; and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished, provided, however, that, so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
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ARTICLE VIII.
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 8.1 Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other corporation, provided that in any
such case (i) either the Company shall be the continuing corporation, or the
successor corporation shall be a corporation organized and existing under the
laws of the United States or a state thereof and such successor corporation
shall expressly assume the due and punctual payment of the principal of (and
premium, if any) and any interest (including all Additional Amounts, if any,
pursuant to Section 10.12) 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 9 hereof, satisfactory to the Trustee,
executed and delivered to the Trustee by such corporation and (ii) immediately
after giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Company or any Subsidiary as a result thereof as
having been incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or the lapse
of time, or both, would become an Event of Default, shall have occurred and be
continuing.
Section 8.2 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 time 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 may be appropriate.
Section 8.3 Officer's Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under Section 8.1 is
also subject to the condition that the Trustee receive an Officer's Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption
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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 IX.
SUPPLEMENTAL INDENTURES
Section 9.1 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:
(a) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities contained; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default are to
be for the benefit of less than all series of Securities, stating that such
events of Default are expressly being included solely for the benefit of such
series); provided, however, that in respect of any such additional Events of
Default such supplemental indenture may provide for a particular period of grace
and default (which period may be shorter or longer than that allowed in the case
of other defaults) or may provide for an immediate enforcement upon such default
or may limit the remedies available to the Trustee upon such default or may
limit the right of the Holders of a majority in aggregate principal amount of
that or those series of Securities to which such additional Events of Default
apply to waive such default; or
(d) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of or any premium or
interest on 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 respects; or
(e) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
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(f) to secure the Securities; or
(g) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 2.1 and 3.1 including the provisions
and procedures relating to Securities convertible into Common Shares or
Preferred Shares, as the case may be; or
(h) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(i) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such provisions shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons in any material
respect; or
(j) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 14.1, 14.2 and 14.3;
provided that any such action shall not adversely affect the interest of the
Holders of Securities of such series or any other series and any related coupons
of Securities in any material respect.
Section 9.2 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:
(a) change the Stated Maturity of the principal of (or premium, if any,
on) or any installment of principal of or interest on, any Security; or reduce
the principal amount thereof or the rate or amount of interest thereon or any
Additional Amounts payable in respect thereof, or any premium payable upon the
redemption thereof, or change any obligation of the Company to pay Additional
Amounts pursuant to Section 1.12 (except as contemplated by Section 8.1(a) and
permitted by Section 9.1(a), or reduce the amount to 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 5.2 or
the amount thereof provable in bankruptcy pursuant to Section 5.4, 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
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Stated Maturity thereof (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or the Repayment Date, as
the case may be) or
(b) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver with respect to such series (or compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences provided for
in this Indenture, or reduce the requirements of Section 15.4 for quorum or
voting, or
(c) modify any of the provisions of this Section, Section 5.13 or
Section 1.13, 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 9.3 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 9.4 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 9.5 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 9.6 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
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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 X.
COVENANTS
Section 10.1 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 premiums, 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 3.1 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 1.12 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 3.1, at
the option of the Company, all payments of principal may be paid by check to the
Holder of the Registered Security or other person entitled thereto against
surrender of such Security.
Section 10.2 Maintenance of Office or Agency. The Company will
maintain in the City of Boston, Massachusetts, an office or agency where, unless
otherwise set forth in the Officer's Certificate or supplemental indenture
referred to in Section 3.1 with respect to any Securities of a series,
Securities may be presented or surrendered for payment or conversion, Securities
may be surrendered for registration of transfer or exchange, and notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If, at any time, the
Company shall fail to maintain such 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,
and the Company hereby appoints the Corporate Trust Office of the Trustee its
agent to receive all such presentations, surrenders, notices and demands.
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 constitute and appoint
one or more Paying Agents for the payment of the Securities of that or those
series in one or more cities, and may from time to time rescind such
designations and appointments; provided, however, that no such designation,
appointment 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.
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Section 10.3 Money for Securities Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to any series
of any Securities and any related coupons, it will, on or before each due date
of the principal of (and premium, if any), or interest on or Additional Amounts
in respect of any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.1 for the Securities of such series), sufficient to pay
the principal (and premium, if any) or interest or Additional Amounts as
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided, and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium, if any), or interest 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
(a) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on securities, in trust for the benefit of the
persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in making of any such payment of principal (and
premium, if any) or interest; and
(c) 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, or the purpose of obtaining the
satisfaction and discharge of this indenture, or for any other purpose, 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 trust 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 response 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
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Amounts in respect of, any Security of any series and remaining unclaimed for
two years after such principal (and premium, if any), interest or Additional
Amounts has become due and payable shall be paid to the Company upon Company
Request or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment of such principal of (and
premium, if any) or interest on, or any Additional Amounts in respect of, 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 paid to
the Company.
Section 10.4 [Reserved].
Section 10.5 [Reserved].
Section 10.6 Existence. Subject to Article 8, the Company will do or
cause to be done all things necessary to preserve and to keep in full force and
effect its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Company shall not be required to preserve any right
or franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
Section 10.7 Maintenance of Properties. The Company will cause all of
its properties used or useful in the conduct of its business or the business of
any Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals and replacements, improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company or any
Subsidiary from selling or otherwise disposing for value its properties in the
ordinary course of its business.
Section 10.8 Insurance. The Company will, and will cause each of its
Subsidiaries to, keep all of its insurable properties insured against loss or
damage at least equal to their then full insurable value with insurers of
recognized responsibility.
Section 10.9 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, (a) 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 (b) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company or the Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged
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any such tax, assessment, charge or claim whose amount, applicability or
validity is being contested in good faith by appropriate proceedings.
Section 10.10 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, to the extent permitted under the Securities Exchange
Act of 1934, file with the Commission the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to such Section 13 or 15(d) (the "Financial Statements") if
the Company were so subject, such documents to be filed with the Commission on
or prior to the respective dates (the "Required Filing Dates") by which the
Company would have been required so to file such documents if the Company were
so subject.
Section 10.11 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 10.11, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
Section 10.12 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 3.1. Whenever in this Indenture
there is mentioned, in any context except in the case of Section 5.2(a), the
payment of the principal of or any premium or interest on, or in respect of, any
Security of any series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Securities 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 3.1 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 3.1, 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 Officer's Certificate, the Company will furnish
the Trustee and the Company's principal Paying Agent or Paying Agents, if other
than the Trustee, with an Officer's 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
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any such withholding shall be required, then such Officer's 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, 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 Officer's
Certificate furnished pursuant to this Section or in reliance on the Company's
not furnishing such an Officer's Certificate.
Section 10.13 Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 10.6 to 10.10, 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 XI.
REDEMPTION OF SECURITIES
Section 11.1 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
3.1 for Securities of any series) in accordance with this Article.
Section 11.2 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 11.4 (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officer's Certificate evidencing compliance with such restriction.
Section 11.3 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
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redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series issued on such date with the same terms not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or
any integral multiple thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context 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 11.4 Notice of Redemption. Notice of redemption shall be given
in the manner provided in Section 1.6, 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 3.1, 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 such Security or portion
thereof.
Any notice that is mailed to the Holders of Registered Securities
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 11.6, if any, and Additional Amounts, if any,
(c) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(d) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(e) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 11.6, if any,
will become due and
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payable upon each such Security, or the portion thereof, to be redeemed and, if
applicable, the interest thereon shall cease to be accrued on and after said
date,
(f) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any, or for conversion,
(g) that the redemption is for a sinking fund, if such is the case,
(h) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by all
coupons maturing subsequent to the date fixed for redemption or the amount of
any such missing coupon, or coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company, the Trustee for such
series and any Paying Agent is furnished,
(i) if the Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on this Redemption Date pursuant to Section 3.4 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(j) the CUSIP number of such Security, if any, and
(k) if applicable, that a Holder of Securities who desires to convert
Securities for redemption must satisfy the requirements for conversion contained
in such Securities, the then existing 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 11.5 Deposit of Redemption Price. On or prior to 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 12, segregate and hold in trust as
provided in Section 10.3) 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 3.1 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 on Interest Payment Date) accrued interest on, all the Securities or
portions thereof which are to be redeemed on that date.
Section 11.6 Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein
specified in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.1
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for the Securities of such series) (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities 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 except
as otherwise provided with respect to Securities convertible into Common Shares
or Preferred Shares, installments of interest on 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 3.7.
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 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 11.7 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 12) 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
to 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. If a Security in global form is
so surrendered, such new Security so issued shall be a new global Security.
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ARTICLE XII.
SINKING FUNDS
Section 12.1 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 3.1 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of such Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 12.2. 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 12.2 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, (a) 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 (b) 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 12.3 Redemption of Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for Securities of any series,
the Company will deliver to the Trustee an Officer's 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 case 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 3.1 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 12.2, 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 Officer's 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 11.3 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the
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manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE XIII.
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.1 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
3.1) in accordance with this Article.
Section 13.2 Repayment of Securities. Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof, together with interest, if any thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that on or before the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 10.3)
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 3.1 for the
Securities of such series) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of,
and (except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to be
repaid on such date.
Section 13.3 Exercise of Option. Securities of any series subject to
repayment at the option of the Holder 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 terms of such Security (or as 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 by 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 duly completed form entitled
"Options 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
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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 13.4 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 of 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 unless otherwise specified pursuant to Section
3.1, 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 other terms and the provisions of Section 3.7.
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 13.2 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 unless otherwise specified as contemplated by
Section 3.1, only upon presentation and surrender of those coupons.
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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 13.5 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 XIV.
DEFEASANCE AND COVENANT DEFEASANCE
Section 14.1 Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. If pursuant to Section 3.1, provision is made
for either or both of (a) defeasance of the Securities of or within a series
under Section 14.2 or (b) covenant defeasance of the Securities of or within a
series under Section 14.3, 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 3.1 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 14.2 (if applicable) or Section 14.3 (if applicable) be
applied to such Outstanding Securities and any coupons appertaining thereto upon
compliance with the conditions set forth below in the Article.
Section 14.2 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 appertaining
thereto on the date the conditions set forth in Section 14.4 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 14.5 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 14.4 and as more fully set forth in
such Section, payments in respect to the principal of (and premium, if any) and
interest, if any, on such Securities and any coupons appertaining thereto when
such payments are
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due, (b) the Company's obligations with respect to such Securities under
Sections 3.5, 3.6, 10.2, and 10.3 and with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section 1.12, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (d)
this Article. Subject to compliance with this Article 14 the Company may
exercise its option under this Section notwithstanding the prior exercise of its
option under Section 14.3 with respect to such Securities and any coupons
appertaining thereto.
Section 14.3 Covenant Defeasance. Upon the Company's exercise of the
above option applicable to the Section with respect to any Securities of or
within a series, the Company shall be released from its obligations under
Sections 10.6 to 10.10, inclusive, and, if specified pursuant to Section 3.1,
its obligations under the conditions set forth in Section 14.4 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any coupons
appertaining thereto shall thereafter been deemed to be not "Outstanding" for
all other purposes hereunder. For this purpose, such covenant defeasance means
that, with respect to such Outstanding Securities and any coupons appertaining
thereto, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of
reference in any such Section or such 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 5.1(d) or 5.1(h) 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 14.4 Conditions of Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 14.2 or Section 14.3
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 6.8 who shall agree to comply with the provisions of this Article 14
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, (i) 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 (ii) Government Obligations applicable to such
Securities and any coupons appertaining thereto (determined on the basis of the
currency, currencies or currency unit in which such Securities and any coupons
appertaining thereto are then specified as payable at Stated Maturity) which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due
date of any payment of principal of (and premium, if any) and interest, if any,
on such Securities and any coupons appertaining thereto, money in an amount, or
(iii) a combination thereof in an amount, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (1) the principal of (and premium, if any) and interest, if any
on such Outstanding Securities and any
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coupons appertaining thereto on the Stated Maturity of such principal of
installment of principal or interest and (2) any mandatory sinking fund payments
or analogous payments applicable to such Outstanding Securities and any coupons
appertaining thereto on the date on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities and any
coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a breach
or violation, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by which it
is bound.
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and any
coupons appertaining thereto shall have occurred and be continuing on the date
of such deposit or, insofar as Sections 5.1(f) and 5.1(g) are concerned, at any
time during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 14.2, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the Company
has received from, or there has been published by the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture, there has been a
change in the applicable federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same time as would have been the case if such defeasance
had not occurred.
(e) In the case of an election under Section 14.3, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officer's
Certificate and Opinion of Counsel each stating that all conditions precedent to
the defeasance under Section 14.2 or the covenant defeasance under Section 14.3
(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 14.2 or Section
14.3 (as the case may be), registration is not required under the Investment
Company Act of 1940, as amended, by the Company with respect to the trust funds
representing such deposit or by the Trustee for such trust funds or (ii) all
necessary registrations under said Act have been effected.
(g) Notwithstanding any other provisions of the 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 3.1.
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Section 14.5 Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 10.3, all money and Government Obligations (or other
property as may be provided pursuant to Section 3.1) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 14.5, the "Trustee") pursuant to Section 14.4 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 Holder 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 3.1, if, after a deposit referred to in Section 14.4(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 3.1 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 14.4(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 14.4(a) has been made, the
indebtedness represented by such Security and any coupons appertaining thereto
shall be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any) and interest, if
any, on such Security as the same becomes due out of the proceeds yielded by
covering 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 14.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 14.4 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.
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<PAGE>
ARTICLE XV.
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1 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 15.2 Call Notice and Place of Meetings. (a) The Trustee may at
any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 15.1, to be held at such time and such place, as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 1.6, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 15.1, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in an amount above
specified, as the case may be, may determine the time and the place for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
Section 15.3 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
(a) a Holder of one or more Outstanding Securities of such series, or (b) 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 15.4 Quorum; Action. The Person 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
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<PAGE>
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 any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 15.2(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of each series which shall
constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.2 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 15.4, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(a) there shall be no minimum quorum requirement for such meeting; and
(b) the principal amount of the Outstanding Securities of such series
that vote in favor of such request, demand, authorization, direction, notice,
consent, waiver or other action shall be taken into account in determining
whether such request, demand, authorization, direction, notice, consent, waiver
or other action has been made, given or taken under this Indenture.
Section 15.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings. (a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to
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<PAGE>
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 1.4 and the appointment of any proxy shall be proved in the manner
specified in Section 1.4 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.4 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valued and genuine without the proof specified in Section 1.4 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 15.2(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or presented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 15.2 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 15.6 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 a 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 15.2 and, if applicable, Section 15.4. 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
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<PAGE>
the Trustee, the latter to have attached thereto the ballots voted at the
meeting. Any records 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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested. All as of the date and year first above written.
BERKSHIRE REALTY COMPANY, INC.
By:______________________________
[SEAL] Title:___________________________
Attest:
- ------------------------------
Title
[Trustee]
By:______________________________
[SEAL] Title:___________________________
Attest:
- ------------------------------
Title
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Exhibit 5.1
[letterhead]
PEABODY & BROWN
A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
101 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110-1832
(617) 345-1000
------
WRITER'S DIRECT DIAL NUMBER FAX: (617) 345-1300 MANCHESTER, NH
(617) 345-1103 ________ PROVIDENCE, RI
http://www.peabodybrown.com WASHINGTON, DC
July 31, 1997
Berkshire Realty Company, Inc.
470 Atlantic Avenue
Boston, MA 02210
Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-3 (the "Registration Statement") filed under the Securities
Act of 1933, as amended (the "Securities Act"), for the purposes of registering
up to an aggregate of $400,000,000 of Offered Securities (as that term is
defined in the Registration Statement) of Berkshire Realty Company, Inc., a
Delaware corporation (the "Company"), to be sold by the Company from time to
time as described in the Registration Statement.
We have acted as counsel for the Company in connection with the
preparation of the Registration Statement and various corporate documents
related thereto. We have examined and relied upon the following documents and
instruments for the purpose of giving this opinion which, to our knowledge and
in our judgment, are all of the documents and instruments that are necessary for
us to examine for such purpose:
1. the Registration Statement and the prospectus filed therewith (the
"Prospectus") and all exhibits thereto;
2. a copy of the Company's Restated Certificate of Incorporation, as
amended to date;
3 a copy of the Company's Bylaws; and
4. such other documents as we have deemed necessary or appropriate
for purposes of this opinion.
In examining all documents, we have assumed the genuineness of all
signatures thereon, the accuracy of all statements contained therein, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents
<PAGE>
furnished to us as certified or photographic copies., and the completeness of
all documents furnished to us. We have also assumed the legal capacity (as
distinct from authority) and competency of any individual who has signed any
instrument referred to herein. With respect to the latter assumption, nothing
has come to our attention giving us reasonable grounds to question the
correctness of such assumption.
Based upon the foregoing, and having regard for such legal considerations
as we deem relevant, we are of the opinion that, when specifically authorized
for issuance by the Company's Board of Directors or an authorized committee
thereof (the "Authorizing Resolution," as that term is defined in the
Registration Statement) and when issued as described in the Registration
Statement and a Prospectus Supplement that is consistent with the Authorizing
Resolution, and upon receipt by the Company of the consideration provided for in
the Authorizing Resolution (which consideration is not less than the $.01 par
value per share in the case of Common Stock or Preferred Stock), the Offered
Securi-ties will be legally issued, fully paid and nonassessable and, in the
case of Securities Warrants and Debt Securities, binding obligations of the
Company.
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Securities Act and applicable requirements of state
laws regulating the offer and sale of securities.
Our opinion is subject to the following qualifications and limitations:
i. The opinions expressed herein are subject to the effect of
applicable bankruptcy, insolvency, reorganization or similar laws
affecting the enforcement of creditors' rights and to equitable
principles limiting the availability of equitable remedies on the
enforceability of contracts, agreements and instruments.
ii. We express no opinion as to the laws of any state or jurisdiction
other than the federal laws of the United States and the laws of
The Commonwealth of Massachusetts and the General Corporation Law
of the State of Delaware.
iii. The opinions set forth herein are expressed as of the date hereof,
and we disclaim any undertaking to advise you of any changes which
may subsequently be brought to our attention in the facts and the
law upon which such opinions are based.
This opinion is furnished by us solely for your benefit and is intended
to be used as an exhibit to the Registration Statement filed with the Securities
and Exchange Commission. Except for such use, neither this opinion nor copies
hereof may be relied upon by, delivered to, or quoted in whole or in part
without our prior written consent.
<PAGE>
We consent to the reference to our firm name under the caption LEGAL
MATTERS in the Prospectus and to the use of our opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Securities Act, or the rules and regulations promulgated thereunder by the
Securities and Exchange Commission.
Very truly yours,
/s/ Peabody & Brown
PEABODY & BROWN
Exhibit 12.1
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratios of earnings to
fixed charges of the Company:
<TABLE>
<CAPTION>
Years Ended December 31,
Jan. 1- 1996 1995 1994 1993 1992
Mar. 31 ---- ---- ---- ---- ----
1997
----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges........ .70x(1) .25x(1) 1.08x(1) 1.35x(1) 2.87x(1) 23.33x(1)
</TABLE>
--------------
(1) Although the Company has historically generated positive net cash flow,
the financial statements reflect a loss for the first quarter of 1997 and
for 1996. Consequently, the computation of the ratio of earnings to fixed
charges for such period indicates that earnings were inadequate to cover
fixed charges by approximately $1.8 million and $15.7 million,
respectively.
For the purpose of calculating the ratio of earnings to fixed charges,
earnings consist of income (loss) from continuing operations, before minority
interest and extraordinary items, plus fixed charges, excluding capitalized
interest. Fixed charges consist of interest expense, capitalized interest and
amortization of deferred financing costs. To date, the Company has not issued
any Preferred Stock; therefore, the ratios of earnings to combined fixed charges
and preferred stock dividend requirements are the same as the ratios of earnings
to fixed charges presented above.
Exhibit 24.1
Consent of Independent Accountants
We consent to the incorporation by reference in this registration statement on
Form S-3 of our report dated February 13, 1997, except for Note Q, for which the
date is February 28, 1997, on our audits of the consolidated financial
statements and financial statement schedule of Berkshire Realty Company, Inc. We
also consent to the reference to our firm under the caption "Experts."
Coopers & Lybrand L.L.P.
Boston, Massachusetts Coopers & Lybrand L.L.P.
July 31, 1997
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