<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 3, 1997
REGISTRATION NO.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
OMEGA HEALTHCARE INVESTORS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
MARYLAND 38-3041398
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
905 WEST EISENHOWER CIRCLE, SUITE 110 ESSEL W. BAILEY, JR.
ANN ARBOR, MICHIGAN 48103 905 WEST EISENHOWER CIRCLE, SUITE 110
(313) 747-9791 ANN ARBOR, MICHIGAN 48103
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE (313) 747-9790
NUMBER, (NAME, ADDRESS, INCLUDING ZIP CODE, AND
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL TELEPHONE NUMBER,
EXECUTIVE OFFICES) INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
------------------------
COPIES OF COMMUNICATIONS TO:
DON M. PEARSON, ESQ.
WILLIAM A. JONES, ESQ.
ARGUE PEARSON HARBISON & MYERS, LLP
801 SOUTH FLOWER STREET
LOS ANGELES, CALIFORNIA 90017
(213) 622-3100
------------------------
PURSUANT TO RULE 429, THIS REGISTRATION STATEMENT
ALSO UPDATES REGISTRATION STATEMENT FILE NO. 3373532
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 4334,
please check the following box. [ ]
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.
CALCULATION OF REGISTRATION FEES
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS TO BE OFFERING PRICE AGGREGATE REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE(2) FEE
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (par value $0.10 per share).... (1)(2) (3) (1)(2)(3) NA
- ---------------------------------------------------------------------------------------------------------------------
Preferred Stock (par value $1.00 per
share).................................... (1)(4) (3) (1)(3)(4) NA
- ---------------------------------------------------------------------------------------------------------------------
Debt Securities............................. (1)(5) (3) (1)(5) NA
- ---------------------------------------------------------------------------------------------------------------------
Securities Warrants......................... (1)(6) (3) (1)(3)(6) NA
- ---------------------------------------------------------------------------------------------------------------------
Total....................................... $150,000,000 $150,000,000 $45,455
=====================================================================================================================
</TABLE>
(1) In no event will the aggregate maximum offering price of all securities
issued pursuant to this Registration Statement exceed $150,000,000 or, if
any Debt Securities are issued with original issue discount, such greater
(Cover page continued on next page)
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<PAGE> 2
amount as shall result in an aggregate offering price of $150,000,000. Any
securities registered hereunder may be sold separately or as units with
other securities registered hereunder. In addition to the $150,000,000
aggregate maximum offering price of all Securities being registered hereby,
the Prospectus contained herein also updates and relates to, pursuant to
Rule 429, $1,750,000 aggregate maximum offering price of securities
registered in Registration Statement File No. 33-73532, with respect to
which a filing fee of $6703.45 was paid, in connection with the filing of
that Registration Statement.
(2) Subject to Footnote (1), there is being registered hereunder an
indeterminate number of shares of Common Stock 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 the Preferred Stock or Debt Securities or exercise of
Securities Warrants registered hereby.
(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 of $1.00 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 principal amount of Debt Securities.
(6) Subject to Footnote (1), there is being registered hereunder an
indeterminate number of Common Stock Warrants, Preferred Stock Warrants, and
Debt Securities Warrants representing rights to purchase Common Stock,
Preferred Stock, and Debt Securities, respectively, registered pursuant to
this Registration Statement.
(7) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended.
<PAGE> 3
OMEGA HEALTHCARE INVESTORS, INC.
Cross Reference Sheet showing location in Prospectus of Information
Required by Form S-3.
<TABLE>
<CAPTION>
REGISTRATION STATEMENT ITEM LOCATION IN PROSPECTUS
--------------------------- ----------------------
<C> <S> <C>
1 Forepart of Registration Statement and Outside Front
Cover Page of Prospectus.............................. Outside Front Cover of Prospectus
2 Inside Front and Outside Back Cover Pages of
Prospectus............................................ Available Information; Documents
Incorporated by Reference; Outside Back
Cover of Prospectus
3 Summary Information, Risk Factors and Ratio of
Earnings to Fixed Charges............................. The Company; Ratios of Earnings to
Fixed Charges
4 Use of Proceeds....................................... Use of Proceeds
5 Determination of Offering Price....................... Inapplicable
6 Dilution.............................................. Inapplicable
7 Selling Security Holders.............................. Inapplicable
8 Plan of Distribution.................................. Plan of Distribution
9 Description of Securities to be Registered............ Description of Securities -- Common
Stock, Preferred Stock, Debt
Securities, Securities Warranties
10 Interest of Named Experts and Counsel................. Legal Matters
11 Material Changes...................................... The Company
12 Incorporation of Certain Information by Reference..... Documents Incorporated by Reference
13 Disclosure of Commission Position on Indemnification
for Securities Act Liabilities........................ Inapplicable
</TABLE>
<PAGE> 4
PROSPECTUS
OMEGA HEALTHCARE INVESTORS, INC.
COMMON STOCK, PREFERRED STOCK,
DEBT SECURITIES AND SECURITIES WARRANTS
Omega Healthcare Investors, Inc. (the "Company") may from time to time
offer in one or more series (i) shares of its common stock, par value $.10 per
share (the "Common Stock"); (ii) shares of its preferred stock, par value $1.00
per share (the "Preferred Stock"); (iii) its unsecured debt securities (the
"Debt Securities"); or (iv) warrants to purchase Common Stock (the "Common Stock
Warrants"), warrants to purchase Debt Securities (the "Debt Securities
Warrants"), and warrants to purchase Preferred Stock (the "Preferred Stock
Warrants"), with an aggregate public offering price of up to $150,000,000, on
terms to be determined at the time of offering. The Common Stock Warrants, the
Debt Securities Warrants and the Preferred Stock Warrants shall be referred to
herein collectively as the "Securities Warrants." The Common Stock, Preferred
Stock, Debt Securities, and Securities Warrants (collectively, the "Securities")
may be offered, separately or together, in separate series amounts, at prices
and on terms to be set forth in a supplement to this Prospectus (a "Prospectus
Supplement").
(continued on next page)
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE 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.
------------------------
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
------------------------
THE DATE OF THIS PROSPECTUS IS JANUARY 31, 1997
<PAGE> 5
The terms of the Preferred Stock, including 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 will be set
forth in the applicable Prospectus Supplement. In the case of the Debt
Securities, the specific title, aggregate principal amount, form (which may be
registered or bearer, or certified or global), 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 conversion provisions will be set forth in the
applicable Prospectus Supplement. In the case of the Securities Warrants, the
duration, offering price, exercise price and detachability, if applicable, will
be set forth in the applicable Prospectus Supplement. In addition, such specific
terms may include limitations on direct or beneficial ownership and restrictions
on transfer of the Securities or redemption or conversion terms, in each case as
may be appropriate to preserve the status of the Company as a real estate
investment trust ("REIT") for United States federal income tax purposes. The
applicable Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Offered Securities
covered by such Prospectus Supplement.
In the case of Securities Warrants, the duration, offering price, exercise
price and detachability, if applicable, will be set forth in the applicable
Prospectus Supplement. In addition, such specific terms may include limitations
on direct or beneficial ownership and restrictions on transfer of the
Securities, in each case as may be appropriate to preserve the status of the
Company as a real estate investment trust ("REIT") for United States federal
income tax purposes. The applicable Prospectus Supplement will also contain
information, where applicable, about certain United States federal income tax
considerations relating to, and any listing on a securities exchange of, the
Securities covered by such Prospectus Supplement.
Securities may be offered directly, through agents designated from time to
time by the Company, or to or through underwriters or dealers. If any agents or
underwriters are involved in the sale of any of the Securities, their names, and
any applicable purchase price, fee, commission or discount arrangement between
or among them, will be set forth, or will be calculable from the information set
forth, in the applicable Prospectus Supplement. See "Plan of Distribution." No
Securities may be sold without delivery of the applicable Prospectus Supplement
describing the method and terms of the offering of such series of Securities.
The net proceeds to the Company from the sale of any of the Securities will be
set forth in the applicable Prospectus Supplement.
2
<PAGE> 6
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 and in accordance therewith, files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities maintained by the
Commission in Washington, D.C. (Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549), and at the Commission's Regional Offices in Chicago
(500 West Madison Street, Suite 1400, Chicago, Illinois 60665) and New York City
(7 World Trade Center, 13th Floor, New York, New York 10048). Copies of such
material can be obtained from the Commission's Public Reference Section, 450
Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. The common stock
of the Company is listed on the New York Stock Exchange and reports, proxy
statements and other information concerning Omega Healthcare Investors, Inc. can
be inspected at 20 Broad Street, New York, New York. The Company has filed with
the Commission a Registration Statement on Form S-3 with respect to the
securities offered hereby. This Prospectus and any accompanying Prospectus
Supplement do not contain all information set forth in the Registration
Statement, in accordance with the rules and regulations of the Commission, and
exhibits thereto which the Company has filed with the Commission under the
Securities Act of 1933 and to which reference is hereto made.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents previously filed with the Commission are
incorporated in this Prospectus by reference:
- Annual Report of the Company on Form 10-K for the year ended December 31,
1995;
- Quarterly Reports of the Company on Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996, and September 30, 1996;
- Current Reports of the Company on Form 8-K dated June 10, 1996, and
January 19, 1996; and
- The description of the Company's Common Stock, $.10 par value, contained
in its Initial Registration Statement on Form 8-A, filed under Section 12
of the Securities Exchange Act of 1934, and declared effective by the
Commission on August 7, 1992.
All documents filed by Omega Healthcare Investors, Inc. pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 subsequent to
the date hereof and prior to the termination of the offering made hereby shall
be deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing such documents. All information appearing in this
Prospectus is qualified in its entirety by the detailed information and
financial statements (including the notes thereto) appearing in the documents
incorporated by reference. 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 subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
Omega Healthcare Investors, Inc. will provide without charge to each person
to whom this Prospectus is delivered, on written or oral request of such person,
a copy (without exhibits other than exhibits specifically incorporated by
reference therein) of any or all documents incorporated by reference into this
Prospectus within the meaning of Section 10(a) of the Securities Act of 1933.
Requests for such copies should be directed to Essel W. Bailey, Jr., President
and Secretary of the Company, at the Company's principal executive offices at
905 West Eisenhower Circle, Suite 110, Ann Arbor, Michigan 48103, telephone
(313) 747-9790.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SHARES OF THE
COMPANY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR OTHERWISE.
SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
3
<PAGE> 7
THE COMPANY
Omega Healthcare Investors, Inc. (the "Company") was incorporated in the
State of Maryland on March 31, 1992. It is a self administered real estate
investment trust ("REIT") which invests in income producing healthcare
facilities, principally long-term care facilities located primarily in the
United States.
As of December 31, 1996, the Company's portfolio of domestic investments
consisted of 214 long-term care facilities and 3 medical office buildings. The
Company owns and leases 132 long-term care facilities and 3 medical office
buildings, and provides mortgages, including participating and convertible
mortgages, on 82 long-term care facilities. The facilities are located in 24
states and operated by 34 unaffiliated operators. The Company is also an owner
of and provides management/advisory services to Principal Healthcare Finance
Limited which owns and leases 42 nursing homes in the United Kingdom. The
Company's gross investments at December 31, 1996 totaled $643.3 million.
The Company anticipates providing lease or mortgage financing in the future
for healthcare facilities to qualified operators, and also anticipates acquiring
additional healthcare facility types, including assisted living and acute care
facilities.
The investment objectives of the Company are: To pay regular cash dividends
to shareholders; to provide the opportunity for increased dividends from annual
increases in rental and interest income from revenue participations and from
portfolio growth; to preserve and protect shareholders' capital; and to provide
the opportunity to realize capital growth resulting from appreciation.
The Company intends to make and manage its investments (including the sale
or disposition of property or other investments) in such a manner as to be
consistent with the requirements of the Code (or regulations thereunder) to
qualify as a real estate investment trust ("REIT"), unless, because of changes
in circumstances or changes in the Code (or regulations thereunder), the Board
of Directors determines that it is no longer in the best interests of the
Company to qualify as a REIT.
The executive offices of the Company are located at 905 West Eisenhower
Circle, Suite 110, Ann Arbor, Michigan 48103. Its telephone number is (313)
747-9790.
INVESTMENT STRATEGIES AND POLICIES
The Company maintains a diversified portfolio of income-producing health
care facilities or mortgages thereon, with a primary focus on long-term care
facilities located primarily in the United States. In evaluating potential
investments, the Company considers such factors as: (i) the quality and
experience of management and the creditworthiness of the operator of the
facility; (ii) the facility's historical, current and forecasted cash flow and
its adequacy to meet operational needs, capital expenditures and lease or debt
service obligations, while providing a competitive return on investment to the
Company; (iii) the construction quality, condition and design of the facility;
(iv) the geographic area and type of facility; (v) the tax, growth, regulatory
and reimbursement environment of the community in which the facility is located;
(vi) the occupancy and demand for similar health care facilities in the same or
nearby communities; and (vii) the payor mix of private, Medicare and Medicaid
patients.
In making investments, the Company generally seeks established,
creditworthy, "middle market" health care operators which meet the Company's
standards for quality and experience of management. Although the Company has
emphasized long-term care investments, it will diversify prudently into other
types of health care investments. The Company actively seeks to diversify its
investments in terms of geographic location, operators and facility types.
A fundamental investment strategy of the Company is to obtain contractual
rent escalations under long-term, non-cancelable "triple net" leases and revenue
participations through participating mortgage loans, and to obtain substantial
security deposits. The Company may participate in mortgage loans through
ownership of collateralized mortgage obligations or other securitization of
mortgages.
The Company may determine to finance acquisitions through the exchange of
properties or the issuance of shares of its capital stock to others, if such
transactions otherwise satisfy the Company's investment criteria.
4
<PAGE> 8
The Company also has authority to repurchase or otherwise reacquire its Common
Stock or any other securities and may determine to do so in the future.
To the extent that the Company's Board of Directors determines to obtain
additional capital, the Company may raise such capital through additional equity
offerings, debt financings or retention of cash flow (subject to provisions of
the Internal Revenue Code of 1986, as amended concerning the taxability of
undistributed income of "real estate investment trusts"), or a combination of
these methods.
The Bylaws of the Company permit the Board of Directors, without the
approval of the shareholders, to alter the Company's investment policies if they
determine in the future that such a change is in the best interests of the
Company and its shareholders. The methods of implementing the Company's
investment policies may vary as new investments and financing techniques are
developed or otherwise employed.
BORROWING POLICIES
The Company may incur additional indebtedness, and intends to eventually
attain and then maintain a long-term debt-to-capitalization ratio of
approximately 40%. The Company intends to review periodically its policy with
respect to its debt-to-capitalization ratio and to adapt such policy as its
management deems prudent in light of prevailing market conditions. The Company's
strategy generally has been to match the maturity of its indebtedness with the
maturity of its assets, and to employ long term, fixed rate debt to the extent
practicable.
The Company will use the proceeds of any additional indebtedness to provide
permanent financing for investments in additional health care facilities. The
Company may obtain either secured or unsecured indebtedness, which may be
convertible into capital stock or accompanied by warrants to purchase capital
stock. Where debt financing is present on terms deemed favorable, the Company
may invest in properties subject to existing loans, secured by mortgages, deeds
of trust or similar liens on the properties.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges are as follows:
<TABLE>
<CAPTION>
YEAR ENDED
AUGUST 14, 1992 DECEMBER 31,
(INCEPTION) TO ----------------------------
DECEMBER 31, 1992(1) 1993 1994 1995 1996
-------------------- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges(2)......... 15.45x 3.51x 2.69x 2.92x 2.67x
</TABLE>
- ---------------
(1) Operations of the Company commenced on August 14, 1992.
(2) For purposes of calculating the ratio of earnings to fixed charges, net
earnings (before extraordinary charge from prepayment of debt in 1995) has
been added to fixed charges and that sum has been divided by such fixed
charges. Fixed charges consist of interest expense and amortization of
deferred financing costs.
USE OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement which accompanies
this Prospectus, the net proceeds from the sale of the Securities offered from
time to time hereby will be used for the repayment of short term bank lines of
credit and general corporate purposes, including additional investments in
health care properties.
DESCRIPTION OF SECURITIES
The Company may offer under this Prospectus one or more of the following
categories of its Securities: (i) shares of its Common Stock, par value $0.10
per share; (ii) shares of its Preferred Stock, par value $1.00 per share, in one
or more series; (iii) Debt Securities, in one or more series; (iv) Common Stock
Warrants;
5
<PAGE> 9
(v) Preferred Stock Warrants; (vi) Debt Warrants; and (vii) any combination of
the foregoing, either individually or as units consisting of one or more of the
types of Securities described in clauses (i) through (vi). The terms of any
specific offering of Securities, including the terms of any units offered, will
be set forth in a Prospectus Supplement relating to such offering.
The authorized capital stock of the Company currently consists of
50,000,000 shares of Common Stock, par value $0.10 per share, and 10,000,000
shares of Preferred Stock, par value $1.00 per share. As of December 31, 1996,
the Company had 18,175,268 shares of its Common Stock issued and outstanding.
The Common Stock is listed on the New York Stock Exchange. The Company intends
to list any additional shares of its Common Stock which are issued and sold
hereunder. No shares of the Company's Preferred Stock are outstanding. The
Company may list any Preferred Stock which is offered and sold hereunder, as
described in the Prospectus Supplement relating to such Preferred Stock.
COMMON STOCK
All shares of Common Stock participate equally in dividends payable to
stockholders of Common Stock when and as declared by the Board of Directors and
in net assets available for distribution to stockholders of Common Stock on
liquidation or dissolution, have one vote per share on all matters submitted to
a vote of the stockholders and do not have cumulative voting rights in the
election of directors. All issued and outstanding shares of Common Stock are,
and the Common Stock offered hereby will be upon issuance, validly issued, fully
paid and nonassessable. Holders of the Common Stock do not have preference,
conversion, exchange or preemptive rights. The Common Stock is listed on the New
York Stock Exchange (NYSE Symbol "OHI").
REDEMPTION AND BUSINESS COMBINATION PROVISIONS
If the Board of Directors shall, at any time and in good faith, be of the
opinion that direct or indirect ownership of at least 9.9% or more of the voting
shares of capital stock has or may become concentrated in the hands of one
beneficial owner, the Board of Directors shall have the power (i) by lot or
other means deemed equitable by it to call for the purchase from any stockholder
of the Company a number of voting shares sufficient, in the opinion of the Board
of Directors, to maintain or bring the direct or indirect ownership of voting
shares of capital stock of such beneficial owner to a level of no more than 9.9%
of the outstanding voting shares of the Company's capital stock, and (ii) to
refuse to transfer or issue voting shares of capital stock to any person whose
acquisition of such voting shares would, in the opinion of the Board of
Directors, result in the direct or indirect ownership by that person of more
than 9.9% of the outstanding voting shares of capital stock of the Company.
Further, any transfer of shares, options, warrants, or other securities
convertible into voting shares that would create a beneficial owner of more than
9.9% of the outstanding voting shares shall be deemed void ab initio and the
intended transferee shall be deemed never to have had an interest therein. The
purchase price for any voting shares of capital stock so redeemed shall be equal
to the fair market value of the shares reflected in the closing sales prices for
the shares, if then listed on a national securities exchange, or the average of
the closing sales prices for the shares if then listed on more than one national
securities exchange, or if the shares are not then listed on a national
securities exchange, the latest bid quotation for the shares if then traded
over-the-counter, on the last business day immediately preceding the day on
which notices of such acquisitions are sent by the Company, or, if no such
closing sales prices or quotations are available, then the purchase price shall
be equal to the net asset value of such stock as determined by the Board of
Directors in accordance with the provisions of applicable law. From and after
the date fixed for purchase by the Board of Directors, the holder of any shares
so called for purchase shall cease to be entitled to distributions, voting
rights and other benefits with respect to such shares, except the right to
payment of the purchase price for the shares.
The Articles of Incorporation require that, except in certain
circumstances, Business Combinations (as defined) between the Company and a
beneficial holder of 10% or more of the Company's outstanding voting stock (a
"Related Person") be approved by the affirmative vote of at least 90% of the
outstanding voting shares of the Company.
6
<PAGE> 10
A Business Combination is defined in the Articles of Incorporation as (a)
any merger or consolidation of the Company with or into a Related Person, (b)
any sale, lease, exchange, transfer or other disposition, including without
limitation a mortgage or any other security device, of all or any "Substantial
Part" (as defined) of the assets of the Company (including without limitation
any voting securities of a subsidiary) to a Related Person, (c) any merger or
consolidation of a Related Person with or into the Company, (d) any sale, lease,
exchange, transfer or other disposition of all or any Substantial Part of the
assets of a Related Person to the Company, (e) the issuance of any securities
(other than by way of pro rata distribution to all stockholders) of the Company
to a Related Person, and (f) any agreement, contract or other arrangement
providing for any of the transactions described in the definition of Business
Combination. The term "Substantial Part" shall mean more than 10% of the book
value of the total assets of the Company as of the end of its most recent fiscal
year ending prior to the time the determination is being made.
Pursuant to the Articles of Incorporation, the Company's Board of Directors
is classified into three classes. Each class of directors serves for a term of
three years, with one class being elected each year. As of the date of this
Prospectus, there are seven directors, two in each of two classes of directors,
and three in one class.
The foregoing provisions of the Articles of Incorporation and certain other
matters may not be amended without the affirmative vote of at least 90% of the
outstanding voting shares of the Company.
The foregoing provisions may have the effect of discouraging unilateral
tender offers or other takeover proposals which certain stockholders might deem
in their interests or in which they might receive a substantial premium. The
Board of Directors' authority to issue and establish the terms of currently
authorized Preferred Stock, without stockholder approval, may also have the
effect of discouraging takeover attempts. See "Preferred Stock." The provisions
could also have the effect of insulating current management against the
possibility of removal and could, by possibly reducing temporary fluctuations in
market price caused by accumulation of shares, deprive stockholders of
opportunities to sell at a temporarily higher market price. However, the Board
of Directors believes that inclusion of the Business Combination provisions in
the Articles of Incorporation may help assure fair treatment of stockholders and
preserve the assets of the Company.
The foregoing summary of certain provisions of the Articles of
Incorporation does not purport to be complete or to give effect to provisions of
statutory or common law. The foregoing summary is subject to, and qualified in
its entirety by reference to, the provisions of applicable law and the Articles
of Incorporation, a copy of which is incorporated by reference as an exhibit to
the Registration Statement of which this Prospectus is a part.
TRANSFER AGENT AND REGISTRAR
First Chicago Trust Company of New York is the transfer agent and registrar
of the Common Stock.
PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in such
Prospectus Supplement. The description of certain provisions of the Preferred
Stock set forth below and in any Prospectus Supplement does not purport to be
complete and is subject to and qualified in its entirety by reference to the
Company's Articles of Incorporation (the "Articles of Incorporation"), and the
Board of Directors' resolution or articles supplementary (the "Articles
Supplementary") relating to each series of the Preferred Stock 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 the Preferred Stock.
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GENERAL
The authorized capital stock of the Company consists of 50,000,000 shares
of Common Stock, $0.10 par value per share, and 10,000,000 shares of preferred
stock, $1.00 par value per share ("preferred stock of the Company," which term,
as used herein, includes the Preferred Stock offered hereby).
Under the Articles of Incorporation, the Board of Directors of the Company
is authorized without further stockholder action to provide for the issuance of
up to 10,000,000 shares of preferred stock of the Company, in one or more
series, with such designations, preferences, powers and relative participating,
optional or other special rights and qualifications, limitations or restrictions
thereon, including, but not limited to, dividend rights, dividend rate or rates,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), the redemption price or prices, and the liquidation
preferences as shall be stated in the resolution providing for the issue of a
series of such stock, adopted, at any time or from time to time, by the Board of
Directors of the Company.
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference is
made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered thereby for specific terms, including: (i) the
designation and stated value per share of such Preferred Stock and the number of
shares offered; (ii) the amount of liquidation preference per share; (iii) the
initial public offering price at which such Preferred Stock will be issued; (iv)
the dividend rate (or method of calculation), the dates on which dividends shall
be payable and the dates from which dividends shall commence to cumulate, if
any; (v) any redemption or sinking fund provisions; (vi) any conversion rights;
(vii) any additional voting, dividend, liquidation, redemption, sinking fund and
other rights, preferences, privileges, limitations and restrictions.
The Preferred Stock will, when issued, be fully paid and nonassessable and
will have no preemptive rights. Unless otherwise stated in a Prospectus
Supplement relating to a particular series of the Preferred Stock, each series
of the Preferred Stock will rank on a parity as to dividends and distributions
of assets with each other series of the Preferred Stock. The rights of the
holders of each series of the Preferred Stock will be subordinate to those of
the Company's general creditors.
CERTAIN PROVISIONS OF THE ARTICLES OF INCORPORATION
See "Common Stock -- Redemption and Business Combination Provisions" for a
description of certain provisions of the Articles of Incorporation, including
provisions relating to redemption rights and provisions which may have certain
anti-takeover effects.
DIVIDEND RIGHTS
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of the Company, out of funds
of the Company legally available therefor, cash dividends on such dates and at
such rates as will be set forth in, or as are determined by, the method
described in the Prospectus Supplement relating to such series of the Preferred
Stock. Such rate may be fixed or variable or both. Each such dividend will be
payable to the holders of record as they appear on the stock books of the
Company on such record dates, fixed by the Board of Directors of the Company, as
specified in the Prospectus Supplement relating to such series of Preferred
Stock.
Dividends on any series of Preferred Stock may be cumulative or
noncumulative, as provided in the applicable Prospectus Supplement. If the Board
of Directors of the Company fails to declare a dividend payable on a dividend
payment date on any series of Preferred Stock for which dividends are
noncumulative, then the holders of such series of Preferred Stock will have no
right to receive a dividend in respect of the dividend period ending on such
dividend payment date, and the Company shall have no obligation to pay the
dividend accrued for such period, whether or not dividends on such series are
declared payable on any future dividend payment dates. Dividends on the shares
of each series of Preferred Stock for which dividends are cumulative will accrue
from the date on which the Company initially issues shares of such series.
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So long as the shares of any series of the Preferred Stock shall be
outstanding, unless (i) full dividends (including if such Preferred Stock is
cumulative, dividends for prior dividend periods) shall have been paid or
declared and set apart for payment on all outstanding shares of the Preferred
Stock of such series and all other classes and series of preferred stock of the
Company (other than Junior Stock as defined below) and (ii) the Company is not
in default or in arrears with respect to the mandatory or optional redemption or
mandatory repurchase or other mandatory retirement of, or with respect to any
sinking or other analogous fund for, any shares of Preferred Stock of such
series or any shares of any other preferred stock of the Company of any class or
series (other than Junior Stock), the Company may not declare any dividends on
any shares of Common Stock of the Company or any other stock of the Company
ranking as to dividends or distributions of assets junior to such series of
Preferred Stock (the Common Stock and any such other stock being herein referred
to as "Junior Stock"), or make any payment on account of, or set apart money
for, the purchase, redemption or other retirement of, or for a sinking or other
analogous fund for, any shares of Junior Stock or make any distribution in
respect thereof, whether in cash or property or in obligations or stock of the
Company, other than Junior Stock which is neither convertible into, nor
exchangeable or exercisable for, any securities of the Company other than Junior
Stock.
LIQUIDATION PREFERENCE
In the event of any liquidation, dissolution or winding up of the Company,
voluntary or involuntary, the holders of each series of the Preferred Stock will
be entitled to receive out of the assets of the Company available for
distribution to stockholders, before any distribution of assets is made to the
holders of Common Stock or any other shares of stock of the Company ranking
junior as to such distribution to such series of Preferred Stock, the amount set
forth in the Prospectus Supplement relating to such series of the Preferred
Stock. If, upon any voluntary or involuntary liquidation, dissolution or winding
up of the Company, the amounts payable with respect to the Preferred Stock of
any series and any other shares of preferred stock of the Company (including any
other series of the Preferred Stock) ranking as to any such distribution on a
parity with such series of the Preferred Stock are not paid in full, the holders
of the Preferred Stock of such series and of such other shares of preferred
stock of the Company will share ratably in any such distribution of assets of
the Company in proportion to the full respective preferential amounts to which
they are entitled. After payment of the holders of the Preferred Stock of each
series of the full preferential amounts of the liquidating distribution to which
they are entitled, the holders of each such series of the Preferred Stock will
be entitled to no further participation in any distribution of assets by the
Company.
If liquidating distributions shall have been made in full to all holders of
shares of Preferred Stock, the remaining assets of the Company shall be
distributed among the holders of Junior Stock, according to their respective
rights and preferences and in each case according to their respective number of
shares. For such purposes, the consolidation or merger of the Company with or
into any other corporation, or the sale, lease or conveyance of all or
substantially all of the property or business of the Company, shall not be
deemed to constitute a liquidation, dissolution or winding up of the Company.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or from time to
time in part, at the option of the Company, and may be subject to mandatory
redemption pursuant to a sinking fund or otherwise, in each case upon terms, at
the times and at the redemption prices set forth in the Prospectus Supplement
relating to such series. Shares of the Preferred Stock redeemed by the Company
will be restored to the status of authorized but unissued shares of preferred
stock of the Company.
In the event that fewer than all of the outstanding shares of a series of
the Preferred Stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed will be determined by lot or pro
rata (subject to rounding to avoid fractional shares) as may be determined by
the Company or by any other method as may be determined by the Company in its
sole discretion to be equitable. From and after the redemption date (unless
default shall be made by the Company in providing for the payment of the
redemption price plus accumulated and unpaid dividends, if any), dividends shall
cease to
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accumulate on the shares of the Preferred Stock called for redemption and all
rights of the holders thereof (except the right to receive the redemption price
plus accumulated and unpaid dividends, if any) shall cease.
So long as any dividends on shares of any series of the Preferred Stock or
any other series of preferred stock of the Company ranking on a parity as to
dividends and distribution of assets with such series of the Preferred Stock are
in arrears, no shares of any such series of the Preferred Stock or such other
series of preferred stock of the Company will be redeemed (whether by mandatory
or optional redemption) unless all such shares are simultaneously redeemed, and
the Company will not purchase or otherwise acquire any such shares; provided,
however, that the foregoing will not prevent the purchase or acquisition of such
shares pursuant to a purchase or exchange offer made on the same terms to
holders of all such shares outstanding.
CONVERSION RIGHTS
The terms and conditions, if any, upon which shares of any series of
Preferred Stock are convertible into Common Stock will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include the
number of shares of Common Stock into which the Preferred Stock is convertible,
the conversion price (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the holders of
Preferred Stock or the Company, the events requiring an adjustment of the
conversion price and provisions affecting conversion.
VOTING RIGHTS
Except as indicated below or in a Prospectus Supplement relating to a
particular series of the Preferred Stock, or except as required by applicable
law, the holders of the Preferred Stock will not be entitled to vote for any
purpose.
So long as any shares of the Preferred Stock of a series remain
outstanding, the consent or the affirmative vote of the holders of at least 80%
of the votes entitled to be cast with respect to the then outstanding shares of
such series of the Preferred Stock together with any Other Preferred Stock (as
defined below), voting as one class, either expressed in writing or at a meeting
called for that purpose, will be necessary (i) to permit, effect or validate the
authorization, or any increase in the authorized amount, of any class or series
of shares of the Company ranking prior to the Preferred Stock of such series as
to dividends, voting or upon distribution of assets and (ii) to repeal, amend or
otherwise change any of the provisions applicable to the Preferred Stock of such
series in any manner which adversely affects the powers, preferences, voting
power or other rights or privileges of such series of the Preferred Stock. In
case any series of the Preferred Stock would be so affected by any such action
referred to in clause (ii) above in a different manner than one or more series
of the Other Preferred Stock then outstanding, the holders of shares of the
Preferred Stock of such series, together with any series of the Other Preferred
Stock which will be similarly affected, will be entitled to vote as a class, and
the Company will not take such action without the consent or affirmative vote,
as above provided, of at least 80% of the total number of votes entitled to be
cast with respect to each such series of the Preferred Stock and the Other
Preferred Stock, then outstanding, in lieu of the consent or affirmative vote
hereinabove otherwise required.
With respect to any matter as to which the Preferred Stock of any series is
entitled to vote, holders of the Preferred Stock of such series and any other
series of preferred stock of the Company ranking on a parity with such series of
the Preferred Stock as to dividends and distributions of assets and which by its
terms provides for similar voting rights (the "Other Preferred Stock") will be
entitled to cast the number of votes set forth in the Prospectus Supplement with
respect to that series of Preferred Stock. As a result of the provisions
described in the preceding paragraph requiring the holders of shares of a series
of the Preferred Stock to vote together as a class with the holders of shares of
one or more series of Other Preferred Stock, it is possible that the holders of
such shares of Other Preferred Stock could approve action that would adversely
affect such series of Preferred Stock, including the creation of a class of
capital stock ranking prior to such series of Preferred Stock as to dividends,
voting or distributions of assets.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of the Preferred Stock shall
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have been redeemed or called for redemption and sufficient funds shall have been
deposited in trust to effect such redemption.
TRANSFER AGENT AND REGISTRAR
Unless otherwise indicated in a Prospectus Supplement relating thereto,
First Chicago Trust Company of New York, will be the transfer agent, dividend
and redemption price disbursement agent and registrar for shares of each series
of the Preferred Stock.
DEBT SECURITIES
Debt Securities may be issued from time to time in series under an
Indenture (the "Indenture") dated January 24, 1997, between the Company and NBD
Bank, as Trustee (the "Trustee"). As used under this caption, unless the context
otherwise requires, Offered Debt Securities shall mean the Debt Securities
offered by this Prospectus and the accompanying Prospectus Supplement. The
statements under this caption are brief summaries of certain provisions
contained in the Indenture, do not purport to be complete and are qualified in
their entirety by reference to the Indenture, including the definition therein
of certain terms, a copy of which is filed as an exhibit to the Registration
Statement of which this Prospectus is a part. The following sets forth certain
general terms and provisions of the Debt Securities. Further terms of the
Offered Debt Securities will be set forth in the Prospectus Supplement.
GENERAL
The Indenture provides for the issuance of Debt Securities in series, and
does not limit the principal amount of Debt Securities which may be issued
thereunder.
Reference is made to the Prospectus Supplement for the following terms of
the Offered Debt Securities: (1) the specific title of the Offered Debt
Securities; (2) the aggregate principal amount of the Offered Debt Securities;
(3) the percentage of their principal amount at which the Offered Debt
Securities will be issued payable; (4) the date on which the Offered Debt
Securities will mature; (5) the rate or rates per annum or the method for
determining such rate or rates, if any, at which the Offered Debt Securities
will bear interest; (6) the times at which any such interest will be payable;
(7) any provisions relating to optional or mandatory redemption of the Offered
Debt Securities at the option of the Company or pursuant to sinking fund or
analogous provisions; (8) the denominations in which the Offered Debt Securities
are authorized to be issued if other than $100,000; (9) any provisions relating
to the conversion or exchange of the Offered Debt Securities into Common Stock
or into Debt Securities of another series; (10) the portion of the principal
amount, if less than the principal amount, payable on acceleration; (11) the
place or places at which the Company will make payments of principal (and
premiums, if any) and interest, if any, and the method of payment; (12) whether
the Offered Debt Securities will be issued in whole or in part in global form;
(13) any additional covenants and Events of Default and the remedies with
respect thereto not currently set forth in the Indenture; (14) the identity of
the Trustee for the Debt Securities, and if not the Trustee, the identity of
each paying agent and the Debt Securities Registrar; (15) the currency or
currencies other than United States Dollars in which any series of Debt
Securities will be issued; and (16) any other specific terms of the Offered Debt
Securities.
One or more series of the Debt Securities may be issued as discounted Debt
Securities (bearing no interest or bearing interest at a rate which at the time
of issuance is below market rates) to be sold at a substantial discount below
their stated principal amount. Tax and other special considerations applicable
to any such discounted Debt Securities will be described in the Prospectus
Supplement relating thereto.
STATUS OF DEBT SECURITIES
The Debt Securities will be unsecured obligations of the Company and may be
ranking on a parity with all other unsecured and unsubordinated indebtedness, or
may be subordinated to certain other indebtedness of the Company.
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CONVERSION RIGHTS
The terms, if any, on which Debt Securities of a series may be exchanged
for or converted into shares of Common Stock or Debt Securities of another
series will be set forth in the Prospectus Supplement relating thereto. 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 beneficially own,
directly or indirectly, 9.9% or more of the Company's shares of Common Stock.
ABSENCE OF RESTRICTIVE COVENANTS
Except as noted below under "Dividends, Distributions and Acquisitions of
Capital Stock," the Company is not restricted by the Indenture from paying
dividends or from incurring, assuming or becoming liable for any type of debt or
other obligations or from creating liens on its property for any purpose. The
Indenture does not require the maintenance of any financial ratios or specified
levels of net worth or liquidity. Except as may be set forth in the Prospectus
Supplement, there are no provisions of the Indenture which afford holders of the
Debt Securities protection in the event of a highly leveraged transaction
involving the Company.
OPTIONAL REDEMPTION
The Debt Securities will be subject to redemption, in whole or from time to
time in part, at any time for certain reasons intended to protect the Company's
status as a REIT, at the option of the Company in the manner specified in the
Indenture at a redemption price equal to 100% of the principal amount, plus
interest accrued to the date of redemption. The Indenture does not contain any
provision requiring the Company to repurchase the Debt Securities at the option
of the Holders thereof in the event of a leveraged buyout, recapitalization or
similar restructuring of the Company.
DIVIDENDS, DISTRIBUTIONS AND ACQUISITIONS OF CAPITAL STOCK
The Indenture provides that the Company will not (i) declare or pay any
dividend or make any distribution on its capital stock or to holders of its
capital stock (other than dividends or distributions payable in its capital
stock or other than as the Company determines is necessary to maintain its
status as a REIT) or (ii) purchase, redeem or otherwise acquire or retire for
value any of its capital stock, or any warrants, rights or options or other
securities to purchase or acquire any Shares of its capital stock (other than
the Debt Securities) or permit any subsidiary to do so, if at the time of such
action an Event of Default (as defined in the Indenture) has occurred and is
continuing or would exist immediately after giving effect to such action.
EVENTS OF DEFAULT
An Event of Default with respect to Debt Securities of any series is
defined in the Indenture as being (a) failure to pay principal of or any premium
on any Debt Security of that series when due; (b) failure to pay any interest on
any Debt Security of that series when due, continued for 30 days; (c) failure to
deposit any sinking fund payment when due, in respect of any Debt Security of
that series; (d) failure to perform any other covenant of the Company in the
Indenture (other than a covenant included in the Indenture solely for the
benefit of one or more series of Debt Securities other than that series),
continued for 60 days after written notice as provided in the Indenture; (e)
certain events of bankruptcy, insolvency, conservatorship, receivership or
reorganization; and (f) any other Event of Default provided with respect to the
Debt Securities of that series.
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If an Event of Default with respect to the outstanding Debt Securities of
any series occurs and is continuing, either the Trustee or the Holders of at
least 25% in aggregate principal amount of the outstanding Debt Securities of
that series may declare the principal amount (or, if the Debt Securities of that
series are original issue discount Debt Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
outstanding Debt Securities of that series to be due and payable immediately. At
any time after the declaration of acceleration with respect to the Debt
Securities of any series has been made, but before a judgment or decree based on
acceleration has been obtained, the Holders of a majority in aggregate principal
amount of the outstanding Debt Securities of that series may, under certain
circumstances, rescind and annul such acceleration.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. Subject to such provisions for the
indemnification of the Trustee and subject to certain limitations, the Holders
of a majority in aggregate principal amount of the outstanding Debt Securities
of any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Debt Securities
of that series.
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance.
MODIFICATIONS AND WAIVER
Modifications and amendments of the Indenture may be made by the Company
and the Trustee without the consent of any Holders to, among other things, (a)
evidence the succession of another corporation to the Company, (b) add to the
covenants of the Company or surrender any right or power conferred upon the
Company, (c) to establish the form or terms of Debt Securities, including any
subordination provisions, (d) 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 does not adversely affect the interests of the Holders of Debt
Securities of any series in any material respect, (e) to add to, delete, or
revise conditions, limitations and restrictions on the authorized amounts, terms
or purpose of Debt Securities, as set forth in the Indenture, or (f) evidence
and provide for a successor Trustee.
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of a majority in aggregate
principal amount of the outstanding Debt Securities of each series affected by
such modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each outstanding Debt
Security affected thereby, (a) change the stated maturity date of the principal
of, or any installment of principal of or interest , if any, on any Debt
Security , (b) reduce the principal amount of, or premium or interest if any, on
any Debt Security, (c) reduce the amount of principal of an original issue
discount Debt Security payable upon acceleration of the maturity thereof, (d)
change the currency of payment of the principal of, or premium or interest, if
any, on any Debt Security, (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security, (f) modify
the conversion provisions, if any, of any Debt Security in a manner adverse to
the Holder of that Debt Security, or (g) reduce the percentage in principal
amount of the outstanding Debt Security of any series, the consent of whose
Holders is required for modification or amendment of that Indenture or for
waiver of compliance with certain provisions of that Indenture or for waiver of
certain defaults.
The Holders of a majority in aggregate principal amount of the outstanding
Debt Security of each series may, on behalf of all Holders of the Debt
Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the Indenture.
The Holders of a majority in aggregate principal amount of the outstanding Debt
Securities of each series may, on behalf of all Holders of the Debt Securities
of that series, waive any past default under the Indenture with respect to the
Debt Securities of that series, except a default in the payment of principal or
premium or interest, if any, or a default
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in respect of a covenant or provision which under the terms of the Indenture
cannot be modified or amended without the consent of the Holder of each
outstanding Debt Security of the series affected.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture provides that the Company, without the consent of the Holders
of any of the Debt Securities, may consolidate or merge with or into or transfer
its assets substantially as an entirety to, any entity organized under the laws
of the United States or any state, provided that the successor entity assumes
the Company's obligations under the Indenture, that after giving effect to the
transaction no Event of Default, and no event which, after notice or lapse of
time, would become an Event of Default, shall have occurred and be continuing,
and that certain other conditions are met.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in global
form (the "Global Securities"). Except as set forth in a Prospectus Supplement,
the terms and provisions with respect to any Global Securities will be as set
forth in this Section captioned "Global Securities." The Global Securities will
be deposited with a depositary (the "Depositary"), or with a nominee for a
Depositary, identified in the Prospectus Supplement. In such case, one or more
Global Securities will be issued in a denomination or aggregate denominations
equal to the portion of the aggregate principal amount of outstanding Debt
Securities of the series to be represented by such Global Security or
Securities. Unless and until it is exchanged in whole or in part for Debt
Securities in definitive form, a Global Security may not be transferred except
as a whole by the Depositary for such Global Security to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor of such Depositary or a nominee of such successor.
The specific material terms of the depositary arrangement with respect to
any portion of a series of Debt Securities to be represented by a Global
Security will be described in the Prospectus Supplement. The Company anticipates
that the following provisions will apply to all depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of persons that have accounts with such Depositary
("participants"). The accounts to be credited shall be designated by any
underwriters or agents participating in the distribution of such Debt
Securities. Ownership of beneficial interests in a Global Security will be
limited to participants or persons that may hold interests through participants.
Ownership of beneficial interests in a Global Security will be limited to
participants or persons that may hold interests through participants. Ownership
of beneficial interests in such Global Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the Depositary for such Global Security (with respect to interests of
participants) or by participants or persons that hold through participants (with
respect to interests of persons other than participant). So long as the
Depositary for a Global Security, or its nominee, is the registered owner of
such Global Security, such Depositary or such nominee, as the case may be, will
be considered the sole owner or Holder of the Debt Securities represented by
such Global Security for all purposes under the Indenture; provided, however,
that the purposes of obtaining any consents or directions required to be given
by the Holders of the Debt Securities, the Company, the Trustee and its agents
will treat a person as the holder of such principal amount of Debt Securities as
specified in a written statement of the Depositary. Except as set forth herein
or otherwise provided in the Prospectus Supplement, owners of beneficial
interests in a Global Security will not be entitled to have the Debt Securities
represented by such Global Security registered in their names, will not receive
physical delivery of such Debt Securities in definitive form and will not be
considered the owners or Holders thereof under the Indenture.
Principal, premium, if any, and interest payments on Debt Securities
represented by a Global Security registered in the name of a Depositary or its
nominee will be made to such Depositary or its nominee, as the case may be, as
the registered owner of such Global Security. None of the Company, the Trustee
or any Paying Agent for such Debt Securities will have any responsibility or
liability for any aspect of the records
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relating to or payments made on account of beneficial ownership interests in
such Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities represented
by a Global Security, upon receipt of any payment of principal, premium, if any,
or interest will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security as shown on the records of such Depositary. The
Company also expects that payments by participants will be governed by standing
instructions and customary practices, as is now the case with the securities
held for the accounts of customers registered in "street names" and will be the
responsibility of such participants.
If the Depositary for any Debt Securities represented by a Global Security
is at any time unwilling or unable to continue as Depositary and a successor
Depositary is not appointed by the Company within 90 days, the Company will
issue such Debt Securities in definitive form in exchange for such Global
Security. In addition, the Company may at any time and in its sole discretion
determine not to have any of the Debt Securities of a series represented by one
or more Global Securities and, in such event, will issue Debt Securities of such
series in definitive form in exchange for all of the Global Security or
Securities representing such Debt Securities.
The laws of some states require that certain purchasers of securities take
physical delivery of such securities in definitive form. Such laws may impair
the ability to transfer beneficial interests in Debt Securities represented by
Global Securities.
SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Common Stock,
Preferred Stock or Debt Securities. Securities Warrants may be issued
independently or together with Common Stock, Preferred Stock or Debt Securities
offered by any Prospectus Supplement and may be attached to or separate from
such Common Stock, Preferred Stock, or Debt Securities. Each series of
Securities Warrants will be issued under a separate warrant agreement (a
"Securities Warrant Agreement") to be entered into between the Company and a
bank or trust company, as Securities Warrant agent, all as set forth in the
Prospectus Supplement relating to the particular issue of offered Securities
Warrants. The Securities 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 obligation 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 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 Warrants 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.
In the case of Securities Warrants for the purchase of Common Stock or
Preferred 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
terms of such Securities Warrants.
15
<PAGE> 19
If Securities Warrants for the purchase of Debt Securities are offered, the
applicable Prospectus Supplement will describe the terms of such Securities
Warrants, including 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; (iii) the designation and terms of any
series of Debt Securities, with which such Securities Warrants are being offered
with each such Debt Securities; (iv) the date, if any, on and 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 of such series may be
purchased upon such exercise; (vi) the date on which the right shall expire (the
"Expiration Date"); (vii) whether the Securities Warrants will be issued in
registered or bearer form; (viii) any special 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 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 or 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 Common Stock or Preferred Stock, holders of such Securities Warrants
will not have any rights of holders of such Common Stock or Preferred Stock,
including the right to receive payments of dividends, if any, on such Common
Stock or Preferred Stock, or to exercise any applicable right to vote.
EXERCISE OF SECURITIES WARRANTS
Each Securities Warrant will entitle the holder thereof to purchase a
number of shares of Common Stock, Preferred Stock or such principal amount of
Debt Securities, 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 Common Stock, Preferred Stock or Debt
Securities, 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 Common Stock, Preferred Stock or Debt Securities, as the case may
be, purchasable upon such exercise. If fewer than all of the Securities Warrants
represented by such Securities Warrant certificate are exercised, a new
Securities Warrant certificate will be issued for the remaining amount of
Securities Warrants.
AMENDMENTS AND SUPPLEMENTS TO SECURITIES WARRANT AGREEMENT
The Securities Warrant Agreements may be amended or supplemented without
the 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.
16
<PAGE> 20
COMMON STOCK WARRANT 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 capital stock and stock splits,
combinations or reclassifications of the 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 Securities Warrant Agreement for such series of Common Stock Warrants), and
(iii) certain distributions of evidences of indebtedness or assets (including
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 quarterly or
other periods 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 Common Stock
or any securities convertible into or exchangeable for 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 a 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 Company may sell the Securities to one or more underwriters for public
offering and sale by them or may sell the Securities to investors directly or
through agents. Any such underwriter or agent involved in the offer and sale of
Securities will be named in the applicable Prospectus Supplement. The Company
has reserved the right to sell Securities directly to investors on its own
behalf in those jurisdictions where and in such manner as it is authorized to do
so.
Underwriters may offer and sell Securities at a fixed price or prices,
which may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Company
also may, from time to time, authorize underwriters or dealers, acting as the
Company's agents, to offer and sell Securities upon the terms and conditions as
are set forth in the applicable Prospectus Supplement. In connection with the
sale of Securities, underwriters may be deemed to have received compensation
from the Company in the form of underwriting discounts or commissions and may
also receive commissions from purchasers of the Securities for whom they may act
as agent. Underwriters may sell Securities to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent.
17
<PAGE> 21
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Securities, and any discounts, concessions or
commissions allowed by underwriters to participating dealers, will be set forth
in the applicable Prospectus Supplement. Dealers and agents participating in the
distribution of Securities may be deemed to be underwriters, and any discounts
and commissions received by them and any profit realized by them on resale of
the Securities may be deemed to be underwriting discounts and commissions.
Underwriters, dealers and agents may be entitled, under agreements entered into
with the Company, to indemnification against and contribution toward certain
civil liabilities, including liabilities under the Securities Act.
The net proceeds to the Company from the sale of the Securities will be the
purchase price of the Securities less any such discounts or commissions and the
other attributable expenses of issuance and distribution.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with and perform services for the Company and its
subsidiaries in the ordinary course of business.
LEGAL MATTERS
Certain legal matters with respect to the Securities offered hereby will be
passed upon for the Company by Argue Pearson Harbison & Myers, LLP, Los Angeles,
California.
EXPERTS
The consolidated financial statements of Omega Healthcare Investors, Inc.
(the Company), incorporated by reference from the Company's Annual Report on
Form 10-K, for the year ended December 31, 1995, have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report incorporated by
reference therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
18
<PAGE> 22
- ------------------------------------------------------
- ------------------------------------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY
UNDERWRITER, DEALER OR AGENT. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY
STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE
PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE
TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS
Available Information.................
Documents Incorporated by Reference...
The Company...........................
Ratio of Earnings to Fixed Charges....
Use of Proceeds.......................
Description of Securities.............
Common Stock........................
Preferred Stock.....................
Debt Securities.....................
Securities Warrants.................
Plan of Distribution..................
Legal Matters.........................
Experts...............................
</TABLE>
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
$150,000,000
OMEGA HEALTHCARE
INVESTORS, INC.
SECURITIES
--------------------
PROSPECTUS
--------------------
JANUARY 31, 1997
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 23
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate (except for the Commission registration fee)
of the fees and expenses payable by the Company in connection with the offering
of the Securities:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $ 45,455
Blue Sky Qualification Fees and Expenses.................... 15,000
Transfer Agent or Trustee Fee............................... 7,000
Legal Fees and Expenses..................................... 75,000
Accounting Fees............................................. 30,000
Printing and Engraving Costs................................ 50,000
Rating Agency Fees.......................................... 75,000
Listing Fees................................................ 50,000
Miscellaneous............................................... 7,545
--------
Total............................................. $355,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Articles of Incorporation and Bylaws of the Registrant provide for
indemnification of directors and officers to the full extent permitted by
Maryland law.
Section 2-418 of the General Corporation Law of the State of Maryland
generally permits indemnification of any director or officer with respect to any
proceedings unless it is established that (a) the act or omission of the
director or officer was material to the matter giving rise to the proceeding and
was either committed in bad faith or the result of active or deliberate
dishonesty; (b) the director or officer actually received an improper personal
benefit in money, property or services, or; (c) in the case of criminal
proceedings, the director or officer had reasonable cause to believe that the
act or omission was unlawful. The indemnity may include judgments, penalties,
fines, settlements, and reasonable expenses actually incurred by the director or
officer in connection with the proceedings; provided, however, that if the
proceeding is one by, or in the right of, the corporation, indemnity is
permitted only for reasonable expenses and not with respect to any proceeding in
which the director shall have been adjudged to be liable to the corporation. The
termination of any proceeding by judgment, order or settlement does not create a
presumption that the director did not meet the requisite standard of conduct
required for permitted indemnification. The termination of any proceeding by
conviction, or plea of nolo contendere or its equivalent, or an entry of an
order of probation prior to judgment, creates a rebuttable presumption that the
director or officer did not meet that standard of conduct.
The Company has entered into indemnity agreements with the officers and
directors of the Company that provide that the Company will, subject to certain
conditions, pay on behalf of the indemnified party any amount which the
indemnified party is or becomes legally obligated to pay because of any act or
omission or neglect or breach of duty, including any actual or alleged error or
misstatement or misleading statement, which the indemnified party commits or
suffers while acting in the capacity as an officer or director of the Company.
Insofar as indemnification for liabilities arising under the Securities Act
is permitted to directors and officers of the Registrant pursuant to the
above-described provisions, the Registrant understands that the Commission is of
the opinion that such indemnification contravenes federal public policy as
expressed in said act and therefore is unenforceable.
II-1
<PAGE> 24
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
4.1 Articles of Incorporation, as amended, of the Registrant,
filed as Exhibit 3.1 to the Registrant's Form 10-Q for the
quarter ended March 31, 1995 and incorporated herein by this
reference.
4.2 Form of Indenture.
4.3 Form of Articles Supplementary for Preferred Stock.**
4.4 Form of Preferred Stock Certificate.**
4.5 Form of Debt Security.**
4.6 Form of Securities Warrant Agreement.**
5 Opinion of Counsel to the Registrant regarding legality.
8 Opinion of Counsel to the Registrant regarding tax
consequences (included in Exhibit 5).
12 Statement re Computation of Ratio of Earnings to Fixed
Charges
23.1 Consent of Counsel to the Registrant (included in Exhibit 5
and Exhibit 8).
23.2 Consent of Ernst & Young LLP.
24 Form of Power of Attorney (set forth on Signature Page of
The Registration Statement).
25 Statement of Eligibility of Trustee on Form T-1.
</TABLE>
- ---------------
** To be filed by amendment or incorporated by reference in connection with the
offering of the Securities.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes that:
(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, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are
incorporated by reference in the Registration Statement.
II-2
<PAGE> 25
(2) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 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 this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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 of 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.
(d) 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.
(e) 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.
(f) 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 (the "TIA") in
accordance with the rules and regulations prescribed by the Commission under
section 305(b)(2) of the TIA.
II-3
<PAGE> 26
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Ann Arbor, State of Michigan, on the 31st day of
January, 1997.
OMEGA HEALTHCARE INVESTORS, INC.
By: /s/ ESSEL W. BAILEY, JR.
-------------------------------
Essel W. Bailey, Jr.
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Essel W. Bailey, Jr. and David A. Stover, and
each or any of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitutes or substitute, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
s/ ESSEL W. BAILEY, JR. Chairman, President, Chief January 31, 1997
- ----------------------------------------------------- Executive Officer, Secretary
Essel W. Bailey, Jr. and Director (principal
executive officer)
s/ DAVID A. STOVER Vice President and Chief January 31, 1997
- ----------------------------------------------------- Financial Officer (principal
David A. Stover financial and principal
accounting officer)
s/ JAMES E. EDEN Director January 31, 1997
- -----------------------------------------------------
James E. Eden
s/ THOMAS F. FRANKE Director January 31, 1997
- -----------------------------------------------------
Thomas F. Franke
s/ HAROLD J. KLOOSTERMAN Director January 31, 1997
- -----------------------------------------------------
Harold J. Kloosterman
</TABLE>
II-4
<PAGE> 27
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
s/ BERNARD J. KORMAN Director January 31, 1997
- -----------------------------------------------------
Bernard J. Korman
s/ EDWARD LOWENTHAL Director January 31, 1997
- -----------------------------------------------------
Edward Lowenthal
s/ ROBERT L. PARKER Director January 31, 1997
- -----------------------------------------------------
Robert L. Parker
</TABLE>
II-5
<PAGE> 28
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGE
- ------- ----------- ------------
<C> <S> <C>
4.1 Articles of Incorporation, as amended, of the Registrant
filed as Exhibit 3.1 to the Registrant's Form 10-Q for the
quarter ended March 31, 1996, and incorporated herein by
this reference.
4.2 Form of Indenture.
4.3 Form of Articles Supplementary for Preferred Stock.**
4.4 Form of Preferred Stock Certificate.**
4.5 Form of Debt Security.**
4.6 Form of Securities Warrant Agreement.**
5 Opinion of Counsel to the Registrant regarding legality.
8 Opinion of Counsel to the Registrant regarding tax
consequences (included in Exhibit 5).
12 Statement re Computation of Ratio of Earnings to Fixed
Charges
23.1 Consent of Counsel to the Registrant (included in Exhibit 5
and Exhibit 8).
23.2 Consent of Ernst & Young.
24 Form of Power of Attorney (set forth on Signature Page of
The Registration Statement).
25 Statement of Eligibility of Trustee on Form T-1.
</TABLE>
- ---------------
** To be filed by amendment or incorporated by reference in connection with the
offering of the Securities.
<PAGE> 1
EXHIBIT 4.2
OMEGA HEALTHCARE INVESTORS, INC.
AND
NBD BANK
Trustee
INDENTURE
Dated as of January 24, 1997
Debt Securities
<PAGE> 2
CROSS REFERENCE TABLE
Omega Healthcare Investors, Inc.
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------------
<S> <C> <C>
310 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
(a) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(a) (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614
(b) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(b) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 614
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1006
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(c) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c) (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
316 (a) (last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 (Outstanding)
(a) (1) (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502, 512
(a) (1) (B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
317 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a) (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504(1)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
</TABLE>
- ------------------------------
Note: This Cross Reference Table shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
ARTICLE ONE
<S> <C>
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Beneficial Owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Debt Securities Register . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Global Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Original Issue Discount Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Registered Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
i
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<TABLE>
<S> <C>
REIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SEC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TIA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 106. Notices to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 107. Communication by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . 10
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 114. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE TWO
DEBT SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 201. Form of Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . 12
SECTION 203. Form of Trustee's Certificate of Authentication by an Authenticating Agent . . . . . 12
SECTION 204. Provisions in Global Debt Security . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE THREE
THE DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 303. Execution Authentication. Delivery and Dating . . . . . . . . . . . . . . . . . . . . 16
SECTION 304. Temporary Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 305. Registration. Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . 19
SECTION 306. Mutilated. Destroyed Lost and Stolen Debt Securities . . . . . . . . . . . . . . . . 21
SECTION 307. Payment of Interest: Interest Rights Preserved . . . . . . . . . . . . . . . . . . . 22
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
</TABLE>
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<TABLE>
<S> <C>
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . 25
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE FIVE REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 502. Acceleration of Maturity: Rescission and Annulment . . . . . . . . . . . . 27
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . 29
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . . . . . . . 30
SECTION 505. Trustee May Enforce Claims Without Possession of Debt Securities . . . . . 30
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest. . 32
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . 32
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 512. Control by Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . 35
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 604. Not Responsible for Recitals or Issuance of Debt Securities . . . . . . . . 37
SECTION 605. May Hold Debt Securities . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 607. Compensation, Reimbursement and Indemnity . . . . . . . . . . . . . . . . . 38
SECTION 608. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . 39
SECTION 609. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . 39
</TABLE>
iii
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<TABLE>
<S> <C>
SECTION 610. Acceptance of Appointment by Successor . . . . . . . . . . . . . . 41
SECTION 611. Merger, Conversion, Consolidation or Succession to Business . . . . 42
SECTION 612. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . 42
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . 44
SECTION 614. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . 44
SECTION 615. Other Capacities . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 616. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE SEVEN
HOLDERS' LISTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . 45
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE; CREATION OF LIENS. . 45
SECTION 801. Company May Consolidate, Etc. Only on Certain Terms . . . . . . . . 45
SECTION 802. Successor Person Substituted . . . . . . . . . . . . . . . . . . . 46
ARTICLE NINE SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . 46
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . 47
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . 48
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . 49
SECTION 905. Reference in Debt Securities to Supplemental Indentures . . . . . . 49
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . 49
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . 49
SECTION 1003. Money for Debt Security Payments to be Held in Trust . . . . . . . 50
SECTION 1004. Statement as to Compliance . . . . . . . . . . . . . . . . . . . . 51
SECTION 1005. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . 52
SECTION 1006. SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 1007. Limitations on Dividends, Distributions and Acquisitions of
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 53
</TABLE>
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<TABLE>
<S> <C> <C> <C>
SECTION 1101. Right of Redemption . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 1102. Election to Redeem: Notice to Trustee . . . . . . . . . . . . . . 53
SECTION 1103. Selection by Trustee of Debt Securities to be Redeemed . . . . . . 53
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . 55
SECTION 1106. Debt Securities Payable on Redemption Date . . . . . . . . . . . . 55
SECTION 1107. Debt Securities Redeemed in Part . . . . . . . . . . . . . . . . . 56
ARTICLE TWELVE
SINKING FUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1201. Mandatory and Optional Sinking Fund Payments . . . . . . . . . . . 56
SECTION 1202. Satisfaction of Sinking Fund Payments with Debt Securities . . . . 56
SECTION 1203. Redemption of Debt Securities for Sinking Funds . . . . . . . . . 57
ARTICLE THIRTEEN
CONVERSION OF DEBT SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1301. Conversion Privilege . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1302. Exercise of Conversion Privilege . . . . . . . . . . . . . . . . . 58
SECTION 1303. Fractions of Shares . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1304. Adjustments of Conversion Price . . . . . . . . . . . . . . . . . 59
SECTION 1305. Notice of Adjustments of Conversion Price . . . . . . . . . . . . 62
SECTION 1306. Notice of Certain Corporate Action . . . . . . . . . . . . . . . . 62
SECTION 1307. Taxes on Conversions . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE FOURTEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
RESTRICTIONS ON TRANSFER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1401. Restrictions on Transfer . . . . . . . . . . . . . . . . . . . . . 63
</TABLE>
v
<PAGE> 8
INDENTURE, dated as of January __, 1997 between OMEGA HEALTHCARE
INVESTORS, INC., a Maryland corporation (hereinafter called the Company"), and
NBD BANK, a Michigan banking corporation, as Trustee hereunder (hereinafter
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
unsubordinated or subordinated debt securities, unlimited as to principal
amount, to bear such rates of interest, if any, to mature at such time or
times, to be issued in one or more series and to have such other provisions as
shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Debt Securities or of
any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein have the meaning assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" with
respect to any computation required or permitted
1
<PAGE> 9
hereunder shall mean such accounting principles which are generally accepted at
the date or time of such computation;
(4) the words "herein," "hereof" and "hereunder and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(5) the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both," not "either A or B but not both"); and
(6) nouns and pronouns of the masculine gender include the feminine
gender.
"Act" when used with respect to any Holder has the meaning specified
in Section 104.
"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 purpose of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms, "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person which shall at the time be
appointed and acting, pursuant to Section 612, as an agent of the Trustee to
authenticate Debt Securities.
"Beneficial Owner" means any Person who owns outstanding stock
directly or beneficially or who is deemed to be an actual or constructive owner
of such stock through the application of section 544, as modified by section
856(h)(1)(B), of the Internal Revenue Code of 1986, as amended. The terms
"Beneficial Ownership" and "Beneficially Own" shall have correlative meanings.
"Board of Directors" means either the Board of Directors of the
Company or any committee of the Board duly authorized to act in any matter
relating hereto.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or a duly authorized committee thereof and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" with respect to any Place of Payment means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions are authorized or obligated by law or executive order to close in
that Place of Payment, or such other day as provided in or pursuant to an
Officers' Certificate or Supplemental Indenture referred to in Section 301.
2
<PAGE> 10
"Common Stock" means the shares of common stock, $.10 par value per
share, of the Company.
"Company" means Omega Healthcare Investors, Inc. until a successor
corporation shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman of the
Board, a Vice Chairman, the President, or a Vice President (whether or not
designated by a number or a word or words added before or after any such
title), and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be conducted, which
office, at the date of execution of this Indenture, is located at 611 Woodward
Avenue, Detroit, Michigan 48226, Attention: Corporate Trust Services.
"Corporation" whether or not such term is capitalized, includes
corporations, associations, companies and business trusts.
"Debt Security" or Debt Securities means any Debt Security or Debt
Securities, as the case may be, authenticated and delivered under this
Indenture.
"Debt Securities Register" and "Debt Securities Registrar" have the
respective meanings specified in Section 305.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Debt Securities of any series
issuable or issued in whole or in part in the form of a Global Debt Security,
the Person designated as Depositary by the Company pursuant to Section 301
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 Debt Securities
of any such series, shall mean the Depositary with respect to the Debt
Securities of that series.
"Event of Default" has the meaning specified in Section 501.
"Global Debt Security" means a Debt Security in the form prescribed in
Section 204 evidencing all or part of a series of Debt Securities, issued to
the Depositary for such series or its nominee, and registered in the name of
such Depositary or nominee.
3
<PAGE> 11
"Holder," when used with respect to a Registered Debt Security, means
the person in whose name such Debt Security is registered in the Debt
Securities Register.
"Indenture" means this instrument as originally executed or as it may
from 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 Debt Securities established as
contemplated by Section 201 or 301.
"Interest Payment Date" with respect to any Debt Security means the
Stated Maturity of an installment of interest on such Debt Security.
"Maturity" when used with respect to any Debt Security means the date
on which the principal of such Debt Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman, the President or a Vice President (whether or not
designated by a number or a word or words added before or after any such title)
and by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel designated by the
Company, acceptable to the Trustee.
"Original Issue Discount Debt Security" means a Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding" when used with respect to Debt Securities means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Debt Securities for whose payment or redemption 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 Debt Securities provided that, if
such Debt Securities are to be redeemed, notice of such
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redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Debt Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Debt Securities have
been authenticated and delivered pursuant to this Indenture other than
any such Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Debt
Securities are held by a bona fide purchaser in whose hands such Debt
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of outstanding Debt Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Debt Security that may be counted in
making such determination and that shall be deemed to be Outstanding for such
purposes shall be equal to the amount of the principal thereof that could be
declared to be due and payable pursuant to the terms of such Original Issue
Discount Debt Security at the time the taking of such action by the Holders of
such requisite principal amount is evidenced to the Trustee as provided in
Section 104(a), and, provided further, that Debt Securities owned by the
Company or any Affiliate of the Company shall be disregarded and deemed not to
be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Debt Securities which the Trustee knows to be
so owned shall be so disregarded. Debt 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 Debt Securities and that the pledgee's right so to act with respect to
such Debt Securities and that the pledgee is not the Company or any Affiliate
of the Company.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest, if any, on any Debt Securities
on behalf of the Company, and, subject to the provisions of Section 1003, may
include the Company.
"Person" means any individual, corporation, partnership, limited
liability company, 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 Debt Securities of
any series means the place or places where the principal of (and premium, if
any) and interest, if any, on the Debt Securities of that series are payable as
provided pursuant to Section 301.
"Predecessor Debt Security" of any particular Debt Security means
every previous Debt Security evidencing all or a portion of the same debt as
that evidenced by such particular Debt Security and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen
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Debt Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Debt Security.
"Redemption Date" when used with respect to any Debt Security to be
redeemed means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" when used with respect to any Debt Security to be
redeemed means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Debt Security" means any Debt Security registered in the
Debt Securities Register, and may include a Global Debt Security registered in
the name of a Depositary or its nominee.
"Regular Record Date" for the interest payable on any Interest Payment
Date (other than at Maturity) on the Registered Debt Securities of any series
means the date specified for that purpose as contemplated by Section 301.
"REIT" means a real estate investment trust qualified under Sections
856-860 of the Internal Revenue Code of 1986, as amended.
"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee assigned by the Trustee to administer its corporate
trust matters. In the absence of bad faith on the part of the Company or a
Holder, the Company or the Holder, as the case may be, may conclusively rely
upon the statement of an officer of the Trustee as to whether an officer
(including the officer making the statement) is assigned by the Trustee to
administer the Trustee's corporate trust matters.
"SEC" means the Securities and Exchange Commission.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Debt Security or any
installment of interest thereon means the date specified in such Debt Security
as the fixed date on which the principal of such Debt Security or such
installment of interest is due and payable.
"Subsidiary" means any corporation at least a majority of the shares
of Voting Stock of which shall at the time be owned, directly or indirectly, by
the Company or by one or more Subsidiaries or by the Company and one or more
Subsidiaries.
"Supplemental Indenture" means any Supplemental Indenture to this
Indenture entered into pursuant to the provisions of Section 901 and 902 of
this Indenture.
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"TIA" means the Trust Indenture Act of 1939, as amended from time to
time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
with respect to one or more series of Debt Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each person who is then a Trustee hereunder, and if at any time there
is more than one such person, "Trustee" as used with respect to the Debt
Securities of any series shall mean exclusively the Trustee with respect to the
Debt Securities of that series.
"Voting Stock" when used with respect to the stock of any corporation
means stock of the class or classes having general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of such corporation (irrespective of whether or not at the time
stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency).
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, 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
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
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SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or Opinion of
Counsel, or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate
or opinion is based are erroneous. Any such certificate or Opinion of Counsel
or representations of counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but, need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section.
(2) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of 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
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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.
(3) 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.
The principal amount and serial numbers of Registered Debt
Securities held by any Person, and the date of his holding the same, shall be
proved by the Debt Securities Register.
(4) 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. 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 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 Debt 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 Debt
Securities shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
(5) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any Debt Security
shall bind every future Holder of the same Debt Security and the Holder of
every Debt Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done or suffered to
be done by the Trustee, any Debt Securities Registrar, any Paying Agent or the
Company in reliance thereon, whether or not notation of such action is made
upon such Debt Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
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(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (except as otherwise provided in Section
501 hereof) if in writing and mailed, first-class postage prepaid, to the
Company addressed to the attention of its Secretary at 905 West Eisenhower
Circle, Suite 110, Ann Arbor, Michigan 48103 or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. NOTICES TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event,
unless, otherwise expressly provided herein or in the Officers' Certificate or
Supplemental Indenture referred to in Section 301 with respect to Debt
Securities of any series, such notice shall be sufficiently given if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at his address as it appears in the Debt Securities Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. 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.
In case by reason of any cause it shall be impracticable to give such
notice, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 107. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Communication among Holders with respect to their rights under
this Indenture or the Debt Securities shall be made in accordance with the
provisions of TIA 312(b). The Company, the Trustee, the Debt Securities
Registrar or any agent thereof shall be afforded the protection provided under
TIA Section 312(c).
SECTION 108. 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 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
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SECTION 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Debt Securities
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 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Debt Securities express or
implied, shall give to any Person, (other than the parties hereto, any Debt
Securities Registrar, any Paying Agent, any Authenticating Agent and their
successors hereunder, and the Holders of Debt Securities), any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
This Indenture and the Debt Securities shall be deemed to be a
contract made under the laws of the State of New York and for all purposes
shall be governed by and construed in accordance with the internal laws of the
State of New York, except to the extent certain matters may be governed as a
matter of law by federal law.
SECTION 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Debt Security shall not be a Business Day at a Place of
Payment, then (notwithstanding any other provision of this Indenture or such
Debt Security) payment of interest or principal (and premium, if any) need not
be made on such date at such Place of Payment, but may be made on the nest
succeeding Business Day at such place of payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date or at the Stated
Maturity, and no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 114. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required to be included in this Indenture by
the TIA, the required provision shall control.
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. FORM OF DEBT SECURITIES.
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The Debt Securities of each series shall be in substantially the form
(including any global form) as shall be established by or pursuant to a Board
Resolution or in one or more Supplemental Indentures, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture (including such other provisions as are
necessary to reflect the global form of any Debt Security, and the designation
of a Depositary for such Global Debt Security), and may have such letters,
numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or other laws, rules or regulations or as may, consistently herewith,
be determined by the officers executing such Debt Securities, as evidenced by
their execution of the Debt Securities.
The definitive Debt Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner, all as determined by the officers executing such Debt
Securities, as evidenced by their execution of such Debt Securities.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's Certificate of Authentication on all Debt Securities
shall be in substantially the following form:
This is one of the Debt Securities of the series designated herein
referred to in the within-mentioned Indenture.
Date: [Name of Trustee],
as Trustee
By___________________________
Authorized Signatory
SECTION 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION BY AN
AUTHENTICATING AGENT.
If at any time there shall be appointed an Authenticating Agent
pursuant to Section 612, the Trustee's Certificate of Authentication by such
Authenticating Agent on all Debt Securities shall be in substantially the
following form:
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This is one of the Debt Securities of the series designated herein
referred to in the within-mentioned Indenture.
Date: [Name of Trustee],
as Trustee
By [Name of Authenticating Agent]
Authenticating Agent
By___________________________________
Authorized Signatory
SECTION 204. PROVISIONS IN GLOBAL DEBT SECURITY.
If Debt Securities of a series are issuable in whole or in part as
Global Debt Securities, as specified as contemplated by Section 301, then,
notwithstanding the provisions of Sections 301 and 302, any such Global Debt
Security shall represent such of the Outstanding Debt Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate principal amount of Outstanding Debt Securities from time to time
endorsed thereon and that the aggregate principal amount of Outstanding Debt
Securities represented thereby may from time to time be reduced to reflect
exchanges and payments of principal. The Global Debt Securities may be
permanent or temporary. Any endorsement of a Global Debt Security to reflect
the amount, or any increase or decrease in the principal amount, of outstanding
Debt Securities represented thereby shall be made by the Trustee in such manner
and upon instructions given by such person or persons as shall be specified
therein or in the Company Order to be delivered to the Trustee pursuant to
Section 303 or Section 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any permanent
Global Debt Security in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Company Order. If a Company
Order pursuant to Section 303 or 304 has been or simultaneously is delivered,
any instructions by the Company with respect to endorsement or delivery or
redelivery of a Global Debt Security shall be in writing but need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel.
Notwithstanding the other provisions of this Indenture, unless
otherwise specified as contemplated by Section 301, payment of principal of
(and premium, if any) and interest, if any, on any permanent Global Debt
Securities shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat
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a Person as the Holder of such principal amount of Outstanding Debt Securities
represented by a permanent Global Debt Security as shall be specified in a
written statement of the Depositary with respect to such permanent Global Debt
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 301 with respect
to any series of Debt Securities, any Global Debt Security shall provide, in
addition to the provisions established pursuant to Sections 201 and 301 and set
forth in the preceding paragraphs, that the Depositary will not sell, assign,
transfer or otherwise convey any beneficial interest in such Global Debt
Security unless such beneficial interest is in an amount equal to an authorized
denomination for Debt Securities of such series, and that the Depositary, by
accepting such Global Debt Security, agrees to be bound by such provision. Any
Global Debt Security shall also contain such other provisions as are necessary
to reflect the global form of such Debt Security and the designation of a
Depositary for such Global Debt Security.
ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall
be established in or pursuant to a Board Resolution, and set forth in or
determined in the manner described in an Officers' Certificate, or established
in one or more Supplemental Indentures:
(1) the title of the Debt Securities and the series in which such Debt
Securities shall be included;
(2) any limit upon the aggregate principal amount of the Debt
Securities of that series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of that series pursuant to Section 304, 305, 306, 905 or 1107) and
the percentage of their principal amount at which the Debt Securities will be
issued;
(3) the date or dates on which the principal of the Debt Securities of
that series is payable or the manner of determining the same;
(4) the rate or rates at which the Debt Securities of that series
shall bear interest, if any, or the manner of determining the same, the date or
dates from which such interest shall
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accrue, or the manner of determining the same, the Interest Payment Dates on
which such interest shall be payable and the Regular Record Date for the
determination of Holders to whom interest shall be payable on any Interest
Payment Date, and the basis upon which interest shall be calculated if other
than that of a year of twelve 30-day months;
(5) the place or places where the principal of (and premium, if any)
and interest, if any, on the Debt Securities of that series shall be payable
and the method of such payment;
(6) the period or periods within which, the price or prices at which
and the terms and conditions upon which the Debt Securities of that series may
be redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase Debt
Securities of that series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which Debt
Securities of that series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of U.S. $100,000 and any integral
multiple of U.S. $1,000 above U.S. $100,000, the denominations in which the
Debt Securities of that series shall be issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of the Debt Securities of that series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section
502;
(10) the currency or currencies, including composite currencies or
units of two or more currencies, in which the payment of the principal of (and
premium, if any) and interest on the Debt Securities of that series shall be
payable (if other than currency of the United States of America);
(11) the provisions, if any, relating to the conversion or exchange of
the Debt Securities of any series into Debt Securities of another series or
into Common Stock;
(12) any additional covenants and events of default and the remedies
with respect thereto concerning the Debt Securities of that series if not set
forth herein;
(13) whether any Debt Securities of the series are to be issued in
whole or in part in the form of one or more Global Debt Securities and, if so,
the Depositary for such Global Debt Security or Debt Securities (which
Depositary shall be, if then required by applicable law or regulation, a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation) and whether beneficial
owners of interests in such Global Debt Security or Debt Securities may
exchange such interests for Debt
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Securities of such series and of like tenor and of any authorized form and
denomination and the circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 305);
(14) the identity of the Trustee for the Debt Securities of the series
and if not the Trustee, the identity of each Paying Agent and Debt Securities
Registrar for the Debt Securities of the series; and
(15) any other terms of the Debt Securities of that series.
All Debt Securities of any one 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 and set forth, or determined in the manner described in such
Officers' Certificate, or in any such Supplemental Indenture hereto. All Debt
Securities of any one series need not be issued at the same time, and, unless
otherwise provided, a series may be reopened for issuances of additional Debt
Securities of that series.
Unless otherwise established in or pursuant to an Officers'
Certificate, or in one or more Supplemental Indenture hereto, at the option of
the Company, interest on the Debt Securities of any series that bears interest
may be paid by mailing a check to the address of the person entitled thereto as
such address shall appear in the Debt Securities Register.
If the form of Debt Securities of any series is established by action
taken, pursuant to a Board Resolution, an appropriate Officers' Certificate
setting forth such form together with a copy of the Board Resolution shall be
delivered to the Trustee at or prior to the delivery of the order contemplated
by Section 303 for the authentication and delivery of such Debt Securities.
SECTION 302. DENOMINATIONS.
The Debt Securities of each series may be issued as Registered Debt
Securities, Global Securities, or in any combination thereof, and in such
denominations and amounts, all as from time to time set forth in an Officers'
Certificate or Supplemental Indenture referred to in Section 301.
SECTION 303. EXECUTION AUTHENTICATION. DELIVERY AND DATING.
The Debt Securities shall be executed on behalf of the Company by its
Chairman of the Board, one of its Vice Chairmen, its President or one of its
Vice Presidents (whether or not designated by a number or a word or words added
before or after any such title) 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 on the Debt Securities may be manual or facsimile.
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Debt Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such Debt
Securities or did not hold such offices at the dates of such Debt Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company to, the Trustee for authentication, together with the Officers'
Certificate or Supplemental Indenture with respect to such Debt Securities
referred to in Section 301 and a Company Order for the authentication and
delivery of such Debt Securities, and the Trustee, in accordance with Company
Order, but subject to the provisions hereof, shall authenticate and deliver
such Debt Securities. Such Company Order may provide that Debt 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 Debt Securities as are specified in the Company Order. In
authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) that the form and terms of such Debt Securities have been
established in conformity with the provisions of this Indenture; and
(b) that all conditions precedent to the authentication and delivery
of such Debt Securities have been complied with and that such Debt Securities,
when completed by appropriate insertions, authenticated and delivered by the
Trustee, issued by the Company and sold in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, conservatorship, receivership and other
laws or, equitable principles relating to or affecting creditors rights
generally and by general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law.
The Opinion of Counsel may also advise that the enforceability of the
Debt Securities and the Indenture is subject to the effect of general
principles of equity including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of
specific performance or injunctive relief, regardless of whether considered in
a proceeding in equity or at law.
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If all the Debt Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel at the time of
issuance of each Debt Security, but such opinion, with appropriate
modifications, shall be delivered at or before the time of issuance of the
first Debt Security of such series.
The Trustee shall not be required to authenticate such Debt Securities
if the issue of such Debt Security, pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Debt Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee or if the Trustee being advised by counsel determines that such action
may not lawfully be taken.
Each Debt Security shall be dated the date of its authentication.
No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Debt
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by the manual signature of one of its authorized
signatories or authorized Authenticating Agents, and such certificate upon any
Debt Security shall be conclusive evidence, and the only evidence, that such
Debt Security has been duly authenticated and delivered hereunder.
SECTION 304. TEMPORARY DEBT SECURITIES.
Pending the preparation or distribution of definitive Debt Securities
of any series, the Company may execute and deliver to the Trustee, and upon
Company Order the Trustee shall authenticate and deliver in the manner provided
in Section 303, a temporary Debt Security or temporary Debt Securities of that
series which are printed, lithographed, typewritten, reproduced or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Debt Securities in lieu of which they are issued or in such form as
may be prescribed in the Officers' Certificate or Supplemental Indenture
referred to in Section 301 with respect to such Debt Securities, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Debt Securities may determine, as evidenced by the
their execution of such Debt Securities.
Except in the case of temporary Global Debt Securities, which shall be
exchanged in accordance with the provisions thereof, if temporary Debt
Securities are issued, the Company shall cause definitive Debt Securities to be
prepared without unreasonable delay. After the preparation of definitive Debt
Securities' the temporary Debt Security or temporary Debt Securities of that
series shall be exchanged for definitive Debt Securities of that series
containing identical terms and provisions upon surrender of the temporary Debt
Securities of that series, at an office or agency of the Company maintained for
such purpose pursuant to Section 1002, without charge to the Holder, or in such
other manner as set forth in the Officers' Certificate or Supplemental
Indenture referred to in Section 301 with respect to such Debt Securities. Upon
surrender for cancellation of any one or more temporary Debt
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Securities of any series, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Debt Securities of authorized denominations of the same series
containing identical terms and provisions. Except as set forth in the Officers'
Certificate or Supplemental Indenture referred to in Section 301 with respect
to such Debt Securities, until so exchanged, the temporary Debt Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Debt Securities of that series authorized and delivered
hereunder.
SECTION 305. REGISTRATION. REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the office of the Debt
Securities Registrar designated pursuant to this Section 305 or Section 1002 a
register (herein sometimes referred to as the "Debt Securities Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of each series of Debt Securities and of
transfers of each series of Debt Securities. The Trustee is hereby initially
appointed "Debt Securities Registrar" for the purpose of registering Debt
Securities and transfers of Debt Securities as herein provided.
Except as set forth in the Officers' Certificate or Supplemental
Indenture referred to in Section 301 with respect to any Debt Securities of a
series, upon surrender for registration of transfer of any Debt Security of any
series at any office or agency of the Company maintained for such purpose
pursuant to Section 1002, the Company shall execute, and the Trustee shall
authenticate and deliver in the name of the designated transferee or
transferees, one or more new Debt Securities of authorized denominations of the
same series containing identical terms and provisions, of a like aggregate
principal amount.
Except as set forth in the Officers' Certificate or Supplemental
Indenture referred to in Section 301 with respect to any Debt Securities of a
series, at the option of the Holder, Debt Securities of any series may be
exchanged for other Debt Securities of authorized denominations of the same
series containing identical terms and provisions, of like aggregate principal
amount, upon surrender of the Debt Securities to be exchanged at such office or
agency. Whenever any Debt Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of
transfer or exchange.
Every Debt Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Debt
Securities Registrar for that series of Debt Security presented) be duly
endorsed, or be accompanied by a written instrument of
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transfer in form satisfactory to the Company and the Debt Securities 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 Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Debt Securities,
other than exchanges pursuant to Section 304, 905 or 1107 not involving any
transfer.
In the event of redemption in part, the Company shall not be required,
(i) to register the transfer of or exchange Registered Debt Securities for a
period of 15 days immediately preceding the date notice is given identifying
the serial numbers of the Debt Securities called for such redemption or (ii) to
register the transfer of or exchange any Registered Debt Securities, or portion
thereof, called for redemption except, in the case of any Registered Debt
Securities to be redeemed in part, the unredeemed portion of such Registered
Debt Securities being redeemed in part.
If at any time the Depositary for the Debt Securities of a series
issued in the form of one or more Global Debt Securities notifies the Company
that it is unwilling or unable to continue as Depositary for the Debt
Securities of such series or if at any time the Depositary for the Debt
Securities of such series shall no longer be eligible under Section 301, the
Company shall appoint a successor Depositary with respect to the Debt
Securities of such series. If a successor Depositary for the Debt Securities of
such series is not appointed by the Company within ninety (90) days after the
Company receives such notice or becomes aware of such ineligibility, the
Company's election to issue Global Debt Securities pursuant to Section 301
shall no longer be effective with respect to the Debt Securities of such series
and the Company will execute. and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Debt Securities of such
series, will authenticate and deliver, Debt Securities of such series in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Debt Security or Debt Securities representing such series in
exchange for such Global Debt Security or Debt Securities.
The Company may at any time and in its sole discretion determine that
the Debt Securities of any series issued in the form of one or more Global Debt
Securities shall no longer be represented by such Global Debt Security or Debt
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Debt Securities of such series, will authenticate and deliver Debt Securities
of such series in definitive form, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Debt
Security or Debt Securities representing such series in exchange for such
Global Debt Security or Debt Securities.
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Unless and until a Global Debt Security is exchanged in whole or in
part for Debt Securities in definitive form in accordance with the provisions
of this Indenture, a Global Debt Security may not be transferred except as a
whole by the Depositary with respect to such Global Debt Security to a nominee
of such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any such nominee to
a successor of such Depositary or a nominee of such successor. Unless
otherwise provided as contemplated by Section 301 with respect to any series of
Debt Securities evidenced in whole or in part by a Global Debt Security, the
Depositary may not sell, assign, transfer or otherwise convey any beneficial
interest in a Global Debt Security evidencing all or part of the Debt
Securities of such series unless such beneficial interest is in an amount equal
to an authorized denomination for Debt Securities of such series.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Debt Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
Global Debt Security are entitled to exchange such interests for Debt
Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301,
then without unnecessary delay but in any event not later than one Business Day
prior to the earliest date on which such interests may be so exchanged, the
Company shall deliver to the Trustee definitive Debt Securities of such series
in aggregate principal amount equal to the principal amount of such Global Debt
Securities, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such Global Debt Securities shall be
surrendered by the Depositary as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Debt
Securities of such series without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such Global Debt Securities, a like
aggregate principal amount of definitive Debt Securities of the same series of
authorized denominations and of like tenor as the portion of such Global Debt
Securities to be exchanged as shall be specified by the beneficial owner
thereof provided, however, that no such exchanges may occur for a period of 15
days immediately preceding the date notice is given identifying the serial
numbers of the Debt Securities called for redemption; if a Registered Debt
Security of any series is issued in exchange for any portion of a Global Debt
Security after the close of business at the office or agency where such
exchange occurs on (1) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (2)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, interest
or Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect to
such Registered Debt Securities, 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 Global Debt Securities is
payable in accordance with the provisions of this Indenture.
SECTION 306. MUTILATED. DESTROYED LOST AND STOLEN DEBT SECURITIES.
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If there is delivered to the Trustee any mutilated Debt Security and
such security or indemnity as may be required by the Trustee to save the
Trustee and the Company harmless, then the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Debt Security
of the same series of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there is delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Debt Security,
and (ii) such security or indemnity as may be required by them to save each of
them harmless, then, in the absence of notice to the Company or the Trustee
that such Debt Security has been acquired by a bona fide purchaser, the Company
shall execute and upon its request the Trustee shall authenticate and deliver,
in lieu of any such destroyed, lost or stolen Debt Security, a new Debt
Security of the same series of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debt Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Debt Security, pay such Debt Security.
Upon the issuance of any new Debt 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 Debt Security of any series issued pursuant to this Section
in lieu of any destroyed, lost or stolen Debt Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Debt Security 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 Debt Securities of that series 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 Debt Securities.
SECTION 307. PAYMENT OF INTEREST: INTEREST RIGHTS PRESERVED.
Interest on any Registered Debt Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall, if so
provided in such Registered Debt Security, be paid to the person in whose name
such Registered Debt Security (or one or more Predecessor Debt Securities) is
registered at the close of business on the Regular Record Date for such
interest, unless interest is payable at Maturity, in which case interest shall
be paid to
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the person entitled to receive payment of the principal of such Registered Debt
Security at Maturity.
Any interest on any Registered Debt Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date for such Registered Debt Security (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder; and such Defaulted
Interest may be paid by the Company, at its election in each case as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Registered Debt Securities affected
(or their respective predecessor Debt 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 such Registered Debt Security and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of money 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 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 (1) 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 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 such Registered Debt Securities at his address as it appears
in the Debt Securities Register not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the
special Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the persons in whose names such Registered Debt
Securities (or their respective predecessor Debt Securities) are registered at
the close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Registered Debt Securities affected 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 (2),
such manner of payment shall be deemed practicable by the Trustee.
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Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Debt Security shall carry the rights (i)
to interest accrued and unpaid, (ii) to interest which may accrue, and (iii) to
premium, if any which were carried by such other Debt Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Debt 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 Debt Security is registered as the
owner of such Debt Security for the purpose of receiving payment of principal
of (and premium, if any) and (subject to Section 307) interest, if any, on such
Debt Security and for all other purposes whatsoever, whether or not such Debt
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.
Notwithstanding the foregoing, with respect to any Global Debt
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 a Depositary or impair, as between a
Depositary and holders of beneficial interests in any Global Debt Security.
SECTION 309. CANCELLATION.
All Debt Securities surrendered for payment, redemption, registration
of transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Debt Securities and Debt
Securities surrendered directly to the Trustee for any such purpose shall be
retained in the possession of the Trustee for cancellation in the case of
redemption or reissuance upon subsequent exchanges. The Company may at any time
deliver to the Trustee for cancellation any Debt Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Debt Securities so delivered shall be promptly
canceled by the Trustee unless otherwise instructed by the Company. No Debt
Securities shall be authenticated in lieu of or in exchange for any Debt
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. Upon written instructions of the Company, all canceled Debt
Securities shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer, conversion or exchange of Debt
Securities herein expressly provided for), and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Debt Securities theretofore authenticated and
delivered (other than (i) Debt Securities which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, and (ii) Debt Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in
Section 1003), have been delivered to the Trustee for
cancellation; or
(B) all such Debt Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness on such Debt
Securities not theretofore delivered to the Trustee for cancellation, for
principal of (and premium, if any) and interest, if any, to the date of such
deposit (in the case of Debt Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be:
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, (i) the
obligations of the Company to the Trustee under Article Six, (ii) the
obligations of the Trustee to any Authenticating Agent under Section 612, (iii)
if money shall have been deposited with the Trustee pursuant to paragraph (B)
of this Section, the rights, powers, protections, trusts, duties and
indemnities of the Trustee hereunder, (iv) the Company's obligations with
respect to such Debt Securities under Sections 304, 305, 306, 1002, 1003, and
1006, and (v) the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003, shall in each case survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Debt Securities and
this Indenture, to the payment, either directly or through 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, it
any) and interest, if any, for whose payment such money has been deposited with
the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default" wherever used herein with respect to Debt
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule, or regulation of any
administrative or governmental body:
(1) default in the payment of any interest upon any Debt Security of
that series when it becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any) on
any Debt Security of that series when it becomes due and payable at its
Maturity; or
(3) default in the deposit of any sinking fund payment when the same
shall become due and payable by the terms of any Debt Security of that series;
or
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(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (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 Debt 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 certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Debt Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) a receiver, liquidator, assignee, custodian, trustee, conservator,
sequestrator or other similar official shall take possession of the Company or
any substantial part of its property without its consent, or the entry of a
decree or order for relief by a court having jurisdiction in the premises in
respect of the Company in an involuntary case under the Federal Bankruptcy Code
or any other applicable Federal or State law, or appointing a receiver,
liquidator, custodian, assignee, trustee, sequestrator, conservator, or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such possession, decree or order unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company of a voluntary case under the
Federal Bankruptcy Code or any other applicable Federal or State law, or the
consent by either of the foregoing to the entry of an order for relief in an
involuntary case under any such law, or the consent by the Company to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, conservator, sequestrator or other similar official of the
Company or of any substantial part of its property, or the making by the
Company of an assignment for the benefit of creditors; or
(7) any other Event of Default provided with respect to Debt
Securities of that series.
SECTION 502. ACCELERATION OF MATURITY: RESCISSION AND ANNULMENT.
If an Event of Default occurs with respect to Debt Securities of any
series and is continuing, then and in every such case the Trustee (upon
obtaining knowledge of such Event of Default) or the Holders of not less than
25% in principal amount of the Outstanding Debt Securities of that series may
declare the principal of all the Debt Securities of that series, or if the Debt
Securities of that series are Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in the terms of that
series, to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has
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been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding Debt Securities of
that series, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest, if any, on all
Debt Securities of that series,
(B) the principal of (and premium, if any, on) any
Debt Securities of that series which have become due otherwise
than by such declaration of acceleration and interest thereon at
the rate or rates borne by or provided for in such Debt
Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest at the rate
or rates borne by or provided for in such Debt Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Debt Securities of that
series, other than the non-payment of the principal of Debt Securities
of that series which has become due solely by such acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or
rescission and annulment thereof, with respect to Debt Securities of a series
all or part of which is represented by a Global Debt Security, the Trustee
shall establish a record date for determining Holders of outstanding Debt
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 day which
is ninety (90) days after such record date, such declaration of acceleration,
or rescission and annulment, as the case may be, shall automatically without
further action by any Holder be canceled and of
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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 canceled 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 502.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of interest
on any Debt Security when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Debt Security at the Maturity thereof or in
the deposit of any sinking fund payment, if any, when the same shall
have become payable,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities, the whole amount then due and payable on such
Debt Securities for principal and. premium, if any) and interest, if any, with
interest upon the overdue principal (and premium, if any) and, to the extent
that payment of such interest is lawful, upon overdue installments of interest,
at the rate or rates borne by or provided for in such Debt Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company wherever
situated.
If an Event of Default with respect to the Debt 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 Debt Securities
of that series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
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SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, conservatorship,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial or other proceeding relative to the Company upon
the Debt Securities or the property of the Company or its creditors, the
Trustee (irrespective of whether the principal of the Debt Securities 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 or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest, if any, owing and unpaid in
respect of the Debt 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
(2) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any receiver, liquidator, assignee, custodian, trustee, conservator,
sequestrator or other similar official in any such judicial or other proceeding
is hereby authorized by each Holder 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,
its agents and counsel, and any other amounts due the Trustee under Section
607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT
SECURITIES.
All rights of action and claims under this Indenture or any of the
Debt Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Debt Securities 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
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for the ratable benefit of the Holders of the Debt Securities in respect of
which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, if any, upon presentation of the Debt Securities 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 under Section
607;
SECOND: To the payment of the amounts then due and unpaid upon the
Debt Securities for principal (and premium, if any) and interest, if any, 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 amounts
due and payable on such Debt Securities for principal (and premium, if any) and
interest, if any, respectively; and
THIRD: The balance, if any, to the Company or any other person or persons
entitled thereto.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Debt Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Debt Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of that series have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
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(5) no direction inconsistent with such written request has been given
to the Trustee during such 60 day period by the Holders of a majority in
principal amount of the Outstanding Debt Securities of that series;
it being understood and intended that no one or more holders of Debt Securities
of any series 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 Holders of Debt Securities of that series or of any
other series, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this indenture, except in the
manner herein provided and for the equal and ratable benefit of all the Holders
of Debt Securities of that series.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest (including any additional interest provided for in an
Officers' Certificate or Supplemental Indenture referred to in Section 301 with
respect to any Debt Securities of a series), if any, on such Debt Security on
the respective Stated Maturities expressed in such Debt Security (or, in the
case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder 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, subject to any determination in such
proceeding, and in every such case the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
No right or remedy herein conferred upon or reserved to the Trustee or
to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 511. DELAY OR OMISSION NOT WAIVER.
To the extent permitted by law, no delay or omission of the Trustee or
of any Holder of any Debt Security to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS
The Holders of 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
exercising any trust or power conferred on the Trustee with respect to Debt
Securities of that series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to Holders of Debt Securities of that series, or any
other series not taking part in such direction, and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(4) such Holder or Holders shall have provided to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request or direction.
Upon receipt by the Trustee of any purported direction with respect to
Debt Securities of a series all or part of which is represented by a Global
Debt Security, the Trustee shall establish a record date for determining
Holders of Outstanding Debt Securities of such series entitled to join in such
direction, which record date shall be at the close of business on the day the
Trustee receives such direction. The Holders on such record date, or their duly
designated proxies, and only such persons, shall be entitled to join in such
direction, whether or not such holders remain Holders after such record date;
provided, that unless such majority in principal amount shall have been
obtained prior to the day which is ninety (90) days after such record date,
such direction shall automatically and without further action by any Holder be
canceled 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 direction identical to a direction which has been
canceled 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
512.
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SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of that series waive any past default hereunder with
respect to that series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Debt Security of that series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Debt Security of that 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 impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Debt
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit, other than the Trustee, of an undertaking to pay the
costs of such suit, and that such court may in its discretion, assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, including the Trustee, 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, or any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Debt
Securities of any series, 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 Debt Security on or after the Stated Maturity
expressed in such Debt Security (or, in the case of redemption, on or after the
Redemption Date).
SECTION 515. WAIVER OF 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 stay or extension law wherever
enacted, nor 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
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and covenants that it will not hinder, delay or impede the exercise of any
power herein granted to the Trustee, but will suffer and permit the exercise of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(1) Except during the continuance of an Event of Default,
(a) 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
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such 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.
(2) 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
or her own affairs.
(3) 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
(a) this Subsection shall not be construed to limit the effect of
Subsection (1) of this Section;
(b) 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;
(c) the Trustee shall not he 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
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majority in principal amount of the Outstanding Debt 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 Debt Securities of that series; and
(d) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(4) 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 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any Event of Default with
respect to the Debt Securities of any series, the Trustee shall transmit in the
manner specified under Section 106 to all Holders of Debt Securities of that
series (including Holders identified in TIA Section 315(b)), notice of such
Event of Default hereunder known to the Trustee, unless such Event of Default
shall have been cured or waived; provided, however, that, except in the case of
a Event of Default in the payment of the principal of (or premium, if any) or
interest, if any, on any Debt Security of that series, or in the payment of any
sinking fund payment with respect to Debt Securities of that series, the Trustee
shall be protected in withholding such notice if the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of Debt Securities of that series; and provided further, that in the
case of any Event of Default of the character specified in Section 501(4) with
respect to Debt Securities of that series, no such notice to Holders shall be
given until at least 60 days after the occurrence thereof.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601,
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
Debt Security or other paper or document reasonably believed by it to be
genuine and to have been signed or presented by the proper party or parties;
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(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the 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;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
Debt Security or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be liable for any action taken by it
in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT
SECURITIES.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debt Securities. The Trustee shall not be
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accountable for the use or application by the Company of the Debt Securities or
the proceeds thereof.
SECTION 605. MAY HOLD DEBT SECURITIES.
The Trustee, any Paying Agent, the Debt Securities Registrar or any
other agent of the Company or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities and may otherwise
deal with the Company with the same rights it would have if it were not
Trustee, Paying Agent, Debt Securities Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. 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 607. COMPENSATION, REIMBURSEMENT AND INDEMNITY.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(2) to reimburse the 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 to the extent such expense, disbursement or advance may be attributable
to its negligence or bad faith; and
(3) to indemnify the Trustee, its officers, directors, agents and
employees for, and to hold them harmless against, any loss, liability or
expense arising out of or in connection with the acceptance or administration
of this trust, including liability which the Trustee, its officers, directors,
agents and employees may incur as a result of failure to withhold, pay or
report taxes and including the costs and expenses of defending themselves
against any claim or liability in connection with the exercise or performance
of any of their powers or duties hereunder, except in each case to the extent
such loss, liability or expense may be attributable to their negligence or bad
faith.
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As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Debt 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 (and premium, if any) or
interest, if any, on particular Debt Securities.
The Trustee's rights under this Section 607 shall survive the
resignation or removal of the Trustee, the redemption of the Debt Securities
and the termination of this Indenture.
"Trustee," for purposes of this Section 607, includes any predecessor
Trustee, provided that the negligence or bad faith of any Trustee shall not
affect the rights under this Section 607 of any other Trustee.
SECTION 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation or bank organized and doing business under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
Federal or State authority. If such corporation or bank publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation or bank 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 Debt Securities issued under this Indenture.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(1) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 610.
(2) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to that
series.
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(3) The Trustee may be removed at any time with respect to the
Debt Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Debt Securities of that series, delivered to the
Trustee and to the Company.
(4) If at any time:
(a) the Trustee shall cease to be eligible under Section 608 and
shall fail to resign after written request therefor by the Company or
by any such Holder, or
(b) the Trustee shall become incapable of acting or shall be
adjudged as bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Debt Securities, or (ii) subject to Section 514,
any Holder who has been a bona fide Holder of a Debt Security of any series 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 the Debt Securities of that series and the appointment
of a successor Trustee.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Debt Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee with respect to the Debt
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Debt Securities of one or more or
all of that or those series and that at any time there shall be only one Trustee
with respect to the Debt Securities of any series). If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of that 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
Debt Securities of that series and supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Debt Securities of any
series shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Debt Security of that 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 the Debt Securities of that series.
(6) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor
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Trustee with respect to the Debt Securities of any series in the manner
provided by Section 106. Each notice shall include the name of the Successor
Trustee with respect to the Debt Securities of that series and the address of
its Corporate Trust Office.
SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(1) In case of appointment hereunder of a successor Trustee with
respect to all Debt Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder, subject nevertheless to its
lien, if any, provided for in Section 607.
(2) In case of the appointment hereunder of a successor Trustee
with respect to the Debt Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Debt Securities of one or more series shall execute and deliver a Supplemental
Indenture hereto wherein each successor Trustee shall accept such appointment
and which (a) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect of the
Debt Securities of that or those series to which the appointment of such
successor Trustee relates, (b) if the retiring Trustee is not retiring with
respect to all Debt 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 Debt Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (c) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such Supplemental Indenture shall
constitute such Trustees as co-trustees of the same trust, that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee and that
no Trustee shall be responsible for any notice given to, or received by, or any
act or failure to act on the part of any other Trustee hereunder, 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, such retiring Trustee shall with respect to the Debt Securities of
that or those series as to which the appointment of such successor Trustee
relates have no further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the Trustee under
this Indenture other than as hereinafter expressly set forth, and each such
successor Trustee without any further act, deed or
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conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debt Securities of that or those
series as 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, to the extent
contemplated by such Supplemental Indenture, the property and money held by
such retiring Trustee hereunder with respect to the Debt Securities of that or
those series as to which the appointment of such successor Trustee relates.
(3) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (1) or (2) of this Section, as the case may be.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation or bank into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation or bank
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation or bank succeeding to all or substantially
all of the corporate trust business of the Trustee, if acceptable to the
Company, shall be the successor of the Trustee hereunder, provided such
corporation or bank shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto other than Notice to the Company. In the event
that the Company determines in good faith that the proposed successor Trustee is
not acceptable to the Company, the Company shall give Notice of its
determination to the proposed successor Trustee within fifteen Business Days
following receipt of Notice from the proposed successor Trustee, and such
proposed successor Trustee shall be deemed to have resigned pursuant to Section
609 effective upon appointment and qualification of a successor Trustee
acceptable to the Company. In case any Debt Securities 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 Debt Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such Debt
Securities.
SECTION 612. APPOINTMENT OF AUTHENTICATING AGENT.
So long as any of the Debt Securities remain outstanding, there may be
one or more Authenticating Agents appointed by the Trustee which shall be
authorized to act on behalf and subject to the direction of the Trustee with
respect to one or more series of Debt Securities to authenticate Debt
Securities issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306 and Debt Securities so authenticated shall
be
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entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever
reference is made in this Indenture to the authentication of Debt Securities by
the Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation or bank
organized and doing business under the laws of the United States of America or
of any State thereof or the District of Columbia, authorized under such laws to
act as Authenticating Agent, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or State
authorities. If such corporation or bank publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation or bank 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 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
hereinafter specified in this Section.
Any corporation or bank into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation or
bank resulting from any merger, conversion or consolidation to which an
Authenticating Agent shall be a party, or any corporation or bank succeeding to
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation or bank
shall be otherwise qualified and eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or such Authenticating Agent, but such Authenticating Agent shall give the
Trustee written notice of any such merger, conversion, consolidation or
succession.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any 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
any Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent acceptable to the Company, in which case it shall give notice of such
appointment to Holders as provided in Section 106. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the right, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless qualified and eligible under the
provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services, and the Trustee shall be
entitled to be reimbursed for such payments.
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall at all times be subject to the provisions of TIA
Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). Any Trustee who has resigned or been removed is subject to TIA Section
311(a) to the extent indicated.
SECTION 614. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after May 15 of each year, commencing May 15, 1997, the
Trustee shall transmit to Holders (including Holders identified in TIA Section
313(c)) in the manner provided by Section 106 a brief report that complies with
the provisions of TIA Section 313(a) and dated as of such reporting date. The
Trustee shall also comply with TIA Section 313 (b)(2).
A copy of each report at the time of its transmission to Holders shall
be filed with the SEC and each stock exchange on which the Debt Securities are
listed. The Company shall notify the Trustee when the Debt Securities are
listed on any stock exchange.
SECTION 615. OTHER CAPACITIES.
Except as otherwise provided herein, (i) all references in this
Indenture to the Trustee shall be deemed to refer to the Trustee in its
capacity as Trustee and in its capacities as Debt Securities Registrar and
Paying Agent and (ii) every provision of this Indenture relating to the conduct
or affecting the liability or offering protection, immunity or indemnity to the
Trustee shall be deemed to apply with the same force to the Trustee in its
capacities as Paying Agent and Debt Securities Registrar.
SECTION 616. NOTICE OF DEFAULT.
The Trustee shall not be deemed to have or be charged with knowledge of
any Event of Default with respect to the Debt Securities or any series for
which it is acting as trustee unless (a) a responsible Officer of the Trustee
shall have actual knowledge of such Event of Default or (b) written notice of
such Event of Default shall have been given to the Trustee by the Company or by
any Holder of such Debt Securities.
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ARTICLE SEVEN
HOLDERS' LISTS
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) not more than 15 days after each Regular Record Date, if any, for
each series of Debt Securities (or if no Regular Record Date exists or the
interval between Regular Record Dates is greater than six months then at least
every six months), a list in such form as the Trustee may reasonably require,
containing all information in the possession or control of the Company, or of
any of its Paying Agents, as to the names and addresses of the Holders of
Registered Debt Securities of that series as of such Regular Record Date, 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 Debt
Securities Registrar, no such list shall be required to be furnished.
The Trustee shall preserve, in as current a form as is reasonably
practicable, all such information furnished to it or received by it in its
capacity as Paying Agent.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE;
CREATION OF LIENS
SECTION 801. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
Corporation, or convey, lease or transfer all or substantially all of its
properties and assets to any Person, unless:
(1) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance, lease or transfer all or
substantially all of the properties and assets of the Company shall be a Person
organized and existing under the laws of the United States of America or any
State or the District of Columbia, and shall expressly assume, by a
Supplemental Indenture hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest, if any, on all the Debt Securities and the
performance of every covenant of this Indenture on the part of the Company to
be performed or observed;
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(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, lease or transfer and such Supplemental Indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation or merger, or any conveyance, lease or transfer
of all or substantially all of the properties and assets of the Company of the
type described in and in accordance with Section 801, the successor Person
formed by such consolidation or into which the Company is merged or to which
such conveyance, lease or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein, and thereafter the predecessor corporation, except in the
event of a conveyance by way of lease, shall be relieved of all obligations and
covenants under this Indenture and the Debt Securities. Such successor Person
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 Debt 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 Person, 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 Debt
Security which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Debt Securities which
such successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Debt Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Debt
Securities theretofore issued in accordance with the terms of this Indenture.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the Debt
Securities thereafter to be issued as may be appropriate.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
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Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more Supplemental Indenture in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the Company,
and the assumption by any such successor of the covenants of the Company herein
and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of the
Holders of all or any series of Debt Securities (and if such covenants are to
be for the benefit of less than all series of Debt Securities, stating that
such covenants are expressly being included solely for the benefit of that
series) or to surrender any right or power herein conferred upon the Company;
or
(3) to establish the form or terms of Debt Securities of any series as
permitted by Sections 201 or 301, including any subordination provisions; or
(4) to cure any ambiguity, to correct or supplement any provision
herein or in any Supplemental Indenture 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, provided such action
pursuant to this clause (4) shall not adversely affect the interests of the
Holders of Debt Securities of any series in any material respect; or
(5) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Debt Securities of one or more series, as herein
set forth; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt 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, pursuant to the requirement of
Section 610(1).
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the outstanding Debt Securities of each series affected by
such Supplemental Indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into a Supplemental Indenture 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 Debt Securities of that series under this Indenture; provided,
however, that no such Supplemental
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Indenture shall, without the consent of the Holder of each Outstanding Debt
Security affected thereby.
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Debt Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of the principal of
an Original Issue Discount Debt Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change the coin or currency in which, the principal of
(or premium, if any, on) any Debt Security or the interest, if any,
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or modify the provisions of this Indenture with respect to the
conversion or exchange of the Debt Securities into Common Stock or
into Debt Securities of another series in a manner adverse to the
Holders,
(2) reduce the percentage in principal amount of the Outstanding
Debt 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 (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section or Section 513
or Section 1005, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Debt
Security affected thereby.
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 Debt Securities, or which
modifies the rights of the Holders of Debt Securities of that series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Debt Securities of any other
series.
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.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
Supplemental Indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such Supplemental Indenture
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is authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such Supplemental Indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any Supplemental Indenture under this Article,
this Indenture shall be modified in accordance therewith, and such Supplemental
Indenture shall form a part of this Indenture for all purposes; and every
Holder of Debt Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby. Any Supplemental Indenture executed under
this Article shall comply in all respects with the requirements of the TIA.
SECTION 905. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL INDENTURES.
Debt 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 Debt Securities of any series so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to any such Supplemental
Indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Debt Securities of that
series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest (including any additional interest provided for
in an Officers' Certificate or Supplemental Indenture referred to in Section
301 with respect to any Debt Securities of a series), if any, or the Debt
Securities in accordance with the terms of the Debt Securities and this
Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the City of New York, an office or agency
or offices or agencies where, unless otherwise set forth in the Officers'
Certificate or Supplemental Indenture referred to in Section 301 with respect
to any Debt Securities of a series, Debt Securities may be presented or
surrendered for payment, Debt Securities may be surrendered for registration of
transfer or exchange, and notices and demands to or upon the Company in respect
of the Debt Securities and this Indenture may be served. The Company initially
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appoints First Chicago Trust Company of New York, as its agent for purposes of
presentation or surrender of Debt Securities for payment, registration of
transfer, exchange or conversion and for service of notices or demands to or
upon it in respect of the Debt Securities and this Indenture. 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.
In addition to such office or agency, the Company may from time to
time designate one or more other offices or agencies where the Debt Securities
of one or more series may be presented or surrendered for any or all of the
purposes specified above in this Section and may constitute and appoint one or
more Paying Agents for the payment of the Debt Securities of that or those
series in one or more other cities, and may from time to time rescind such
designations and appointments, as the Company may deem desirable or expedient,
provided, however, that no such designation, appointment or rescission shall in
any manner relieve the Company of its obligation to maintain such office and
agency in the City of New York for the purposes above mentioned.
SECTION 1003. MONEY FOR DEBT SECURITY 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 Debt Securities, it will, on or before each due date
of the principal of (and premium, if any) or interest, if any, on any of the
Debt Securities of that series, segregate and hold in trust for the benefit of
the persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest, if any, so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Debt Securities, it will, prior to each due date of the principal of
(and premium, if any) or interest, if any, on any Debt Securities of that
series, deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the persons entitled to such principal, premium or
interest, 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 for any series of Debt
Securities 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:
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(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest, if any, on Debt Securities of that
series in trust for the benefit of the persons entitled thereto until
such sums shall be paid to such persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any Event of Default by the
Company in the making of any payment of principal (and premium, if
any) or interest, if any, on the Debt Securities of that series; and
(3) at any time during the continuance of any such Event of
Default, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Subject to applicable escheat laws, 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, if any, on any
Debt Security of any series and remaining unclaimed for three years after such
principal (and premium, if any) or interest, if any, has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Debt
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, 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 a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1004. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement, which need not comply with Section
102, signed by the Chairman of the Board, a Vice Chairman, the President or a
Vice President and by the Treasurer, an
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Assistant Treasurer, the Controller or an Assistant Controller of the Company,
stating, as to each signer thereof, that
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision, and
(2) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all its obligations under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to him and the nature and status thereof, and (b) no event has
occurred and is continuing which is, or after notice or lapse of time
or both would become, an Event of Default, or, if such an event has
occurred and is continuing, specifying each such event known to him
and the nature and status thereof.
SECTION 1005. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 1004 with respect to the Debt
Securities of any series, if before or after the time for such compliance the
Holders of at least a majority in principal amount of the Debt Securities of
that series at the time Outstanding shall, 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 covenant or condition shall remain in full
force and effect.
SECTION 1006. SEC REPORTS.
The Company shall file with the Trustee within 15 days after it files
them with the SEC 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 SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934. The Company shall also comply with the other provisions of TIA
Section 314(a) concerning the filing and transmission of reports to the SEC, the
Trustee and Holders.
SECTION 1007. LIMITATIONS ON DIVIDENDS, DISTRIBUTIONS AND
ACQUISITIONS OF CAPITAL STOCK.
The Company will not declare or pay any dividends or make any
distribution to holders of its capital stock (other than dividends or
distributions payable in capital stock of the Company or other than as the
Company determines is necessary to maintain its status as a REIT), or purchase,
redeem or otherwise acquire or retire for value any of its capital stock or
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any warrants, rights or options (including any securities convertible into or
exercisable for such capital stock but not including the Debt Securities) to
purchase or acquire any shares of its capital stock or permit any Subsidiary to
purchase, redeem or otherwise acquire or retire for value any of the Company's
capital stock or any warrants, rights or options (including any securities
convertible into or exercisable for such capital stock but not including the
Debt Securities) to purchase or acquire any shares of the Company's capital
stock if at the time of such action an Event of Default has occurred and is
continuing or would exist immediately after giving effect to such action.
Notwithstanding the foregoing, the provisions of this Section 1007
will not prevent (i) the payment of any dividend within 60 days after the date
of declaration when the payment would have complied with the foregoing
provisions on the date of declaration; (ii) the retirement of any share of the
Company's capital stock by exchange for, or out of the proceeds of the
substantially concurrent sale (other than to a Subsidiary) of, other shares of
its capital stock.
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. RIGHT OF REDEMPTION.
Redemption of Debt Securities of any series at the option of the
Company as permitted or required by the terms of such Debt Securities shall be
made in accordance with the terms of such Debt Securities and this Article. The
Debt Securities also shall be subject to redemption, in whole or from time to,
time in part, at any time in order to protect the Company's status as a REIT,
at the option of the Company at a redemption price equal to 100% of the
principal amount, premium, if any, plus accrued interest to the date of
redemption.
SECTION 1102. ELECTION TO REDEEM: NOTICE TO TRUSTEE.
The election of the Company to redeem any Debt Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. The Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and, in the case of any redemption at the election of the
Company of less than all the Debt Securities of any series, of the principal
amount of Debt Securities of that series to be redeemed.
SECTION 1103. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE REDEEMED.
If less than all the Debt Securities of any series with the same issue
date and Stated Maturity are to be redeemed, the particular Debt Securities to
be redeemed shall be selected
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not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Debt Securities of that series not previously called for
redemption, by such method as specified in the Officers' Certificate or
Supplemental Indenture referred to in Section 301 or, if not so specified, by
such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to $100,000 or a
multiple of $1,000 above $100,000) of the principal of Debt Securities of that
series of a denomination larger than $100,000. The portions of the principal of
Debt Securities of that series so selected for partial redemption shall be
equal to the smallest authorized denomination of the Debt Securities of that
series or a multiple of $1,000 above $100,000. The portion of the principal of
any Debt Security not redeemed shall not be less than the smallest authorized
denomination of the Debt Securities of that series.
The Trustee shall promptly notify the Company and each Debt Securities
Registrar in writing of the Debt Securities selected for redemption and, in the
case of any Debt Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the contest otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security redeemed or to be redeemed only in
part, to the portion of the principal of such Debt Security which has been or
is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106 not less than 30 nor more than 60 days prior to the Redemption Date unless
a shorter period is specified in the Debt Security of the series to be
redeemed, to each Holder of Debt Securities to be redeemed, but failure to give
such notice in the manner herein provided to the Holder of any Debt Securities
designated for redemption as a whole or in part, or any defect in the notice to
any such Holder, shall not affect the validity of the proceedings for the
redemption of any other such Debt Securities or portion thereof.
Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if
any, to be paid;
(3) if less than all the Outstanding Debt Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Debt
Securities to be redeemed;
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<PAGE> 62
(4) in case any Debt Security is to be redeemed in part only, the
notice which relates to such Debt Security shall state that on and
after the Redemption Date, upon surrender of such Debt Security, the
Holder will receive, without charge, a new Debt Security or Debt
Securities of authorized denominations for the principal amount
thereof remaining unredeemed;
(5) that on the Redemption Date the Redemption price and accrued
interest, if any, will become due and payable upon each such Debt
Security to be redeemed and, if applicable, that the interest thereon
will cease to accrue on and after said date;
(6) the place or places where such Debt Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any; and
(7) the conversion rights, if any, pertaining to such Debt
Securities.
Notice of redemption of Debt Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name of and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to each 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, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (unless the
Redemption Date shall be an Interest Payment Date) accrued interest on, (and
premium, if any) on all the Debt Securities or portions thereof which are to be
redeemed on that date.
SECTION 1106. DEBT SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Debt
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Debt Securities shall cease to bear interest. Upon
surrender of any such Debt Security for redemption in accordance with said
notice, such Debt Security shall be paid by the Company at the Redemption
Price, together with accrued interest to the Redemption Date; provided,
however, that notwithstanding any other provision of this Indenture and unless
otherwise specified in the Officers' Certificate or Supplemental Indenture
referred to in Section 301 with respect to such Debt Security, installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable (but without interest thereon, unless the Company shall default in the
payment thereof in which case the provisions of Section 307 shall apply) to the
Holders of such Debt Securities
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or one or more Predecessor Debt Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Debt 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, to the extent lawful, from the Redemption Date at
the rate borne by the Debt Security.
SECTION 1107. DEBT SECURITIES REDEEMED IN PART.
Any Debt Security which is to be redeemed only in part shall be
surrendered at the office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Debt Security without service
charge a new Debt Security or Debt Securities of any authorized denomination of
the same series as requested by such Holder, in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the
Debt Security so surrendered. If a Global Debt Security is so surrendered, such
new Debt Security so issued shall be a new Global Debt Security.
ARTICLE TWELVE
SINKING FUND
SECTION 1201. MANDATORY AND OPTIONAL SINKING FUND PAYMENTS.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of any series, except as otherwise
permitted or required by any form of Debt Security of that series issued
pursuant to this Indenture. The minimum amount of any sinking fund payment
provided for by the terms of Debt Securities of any series is herein referred
to as a "mandatory sinking fund payment", and any payment in excess of that
minimum amount provided for by the terms of Debt Securities of that series is
herein referred to as an "optional sinking fund payment". If provided for by
the terms of Debt Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Debt Securities of any
series as provided for by the terms of Debt Securities of that series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH DEBT
SECURITIES.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Debt Securities of any series to be made
pursuant to the terms of such Debt
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<PAGE> 64
Securities as provided for by the terms of that series (1) deliver Outstanding
Debt Securities of that series (other than any of such Debt Securities
previously called for redemption or any of such Debt Securities in respect of
which cash shall have been released to the Company), (2) apply as a credit Debt
Securities of that series which have been redeemed either at the election of
the Company pursuant to the terms of that series of Debt Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Debt Securities, provided that such series of Debt Securities
have not been previously so credited and (3) apply as a credit Debt Securities
of that series which have been converted or exchanged into Common Stock or Debt
Securities of another series pursuant to the terms of that series of Debt
Securities, provided that such series of Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly. If as a result of
the delivery or credit of Debt Securities of any series in lieu of cash
payments pursuant to this Section, the principal amount of Debt Securities of
that series to be redeemed in order to exhaust the aforesaid cash payment shall
be less than $100,000, the Trustee need not call Debt Securities of that series
for redemption, except upon Company Request, and such cash payment shall be
held by the Trustee or a Paying Agent and applied to the nest succeeding
sinking fund payment, provided, however, that the Trustee or such Paying Agent
shall at the request of the Company from time to time pay over and deliver to
the Company any cash payment so being held by the Trustee or such Paying Agent
upon delivery by the Company to the Trustee of Debt Securities of that series
purchased by the Company having an unpaid principal amount equal to the cash
payment requested to be released to the Company.
SECTION 1203. REDEMPTION OF DEBT SECURITIES FOR SINKING FUNDS.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of Debt
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment,
and will also deliver to the Trustee any Debt Securities to be so credited and
not theretofore delivered. If such Officers' Certificate shall specify an
optional amount to be added in cash to the next ensuing mandatory sinking fund
payment, the Company shall thereupon be obligated to pay the amount therein
specified. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Debt Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 1106 and 1107.
57
<PAGE> 65
ARTICLE THIRTEEN
CONVERSION OF DEBT SECURITIES
SECTION 1301. CONVERSION PRIVILEGE.
Conversion of Debt Securities of any series into Common Stock of the
Company as permitted by the terms of such Debt Securities shall be made in
accordance with the terms of such Debt Securities and this Article. "Common
Stock" used herein in Article Thirteen means the Common Stock of the Company on
the date the Debt Securities of such series are issued. Notwithstanding the
foregoing, and in order to protect the Company's status as a REIT, a Holder may
not convert any Debt Security; and any such Debt Security shall not be
convertible by any Holder, if as a result of such conversion any person would
then be deemed to beneficially own directly or indirectly, 9.9% or more of
Common Stock. Except as otherwise set forth herein, the Trustee shall have no
duties or responsibilities in respect of the conversion privilege or of any
matter relating thereto, including without limitation and determination of the
conversion price or any adjustment thereto. The Trustee shall have no duty,
responsibility or liability in connection with the observation or enforcement
of the aforementioned restriction on transfer or the consequences of such
restriction or the correction of any such breach or violation.
SECTION 1302. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any Debt
Security of any series to be converted shall surrender such Debt Security, duly
endorsed or assigned to the Company or in blank, at any office or agency of the
Company maintained for that purpose, accompanied by written notice to the
Company at such office or agency that the Holder elects to convert such Debt
Security or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted Debt Securities surrendered for
conversion during the period from the close of business on any Regular Record
Date for the payment of interest on the Debt Securities of that series to the
opening of business on the Interest Payment Date for such interest shall
(except in the case of Debt Securities of that series or portions thereof which
have been called for redemption on a Redemption Date within such period) be
accompanied by payment of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of Debt Securities being
surrendered for conversion. Except as provided in the preceding sentence, no
payment or adjustment shall be made upon any conversion on account of any
interest accrued on the Debt Securities of that series surrendered for
conversion or on account of any dividends on the Common Stock issued upon
conversion.
Debt Securities of any series shall be deemed to have been converted
immediately prior to the close of business on the day of surrender of such Debt
Security for conversion in accordance with the foregoing provisions, and at
such time the rights of the Holder of such
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<PAGE> 66
Debt Security as Holder shall cease, and the Person or Persons entitled to
receive the Common Stock issuable upon conversion shall be treated for all
purposes as the record holder or holders of such Common Stock at such time. As
promptly as practicable on or after the conversion date, the Company shall
issue and shall deliver at said office or agency a certificate or certificates
for the number of full shares of Common Stock issuable upon conversion,
together with payment in lieu of any fraction of a share, as provided in
Section 1303.
In the case of any Debt Security which is converted in part only, upon
such conversion the Company shall execute and the Trustee shall authenticate
and deliver to the Holder thereof, at the expense of the Company, a new Debt
Security or Debt Securities of authorized denominations in aggregate principal
amount equal to the unconverted portion of the principal amount of such Debt
Security.
SECTION 1303. FRACTIONS OF SHARES.
No fractional shares of Common Stock shall be issued upon conversion
of Debt Securities. If more than one Debt Security shall be surrendered for
conversion at one time by the same Holder, the number of full shares which
shall be issuable upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Debt Securities (or specified portions
thereof) so surrendered. Instead of any fractional share of Common Stock which
would otherwise be issuable upon conversion of any Debt Security or Debt
Securities (or specified portions thereof), the Company shall pay a cash
adjustment in respect of such fraction in an amount equal to the same fraction
of the closing price per share of Common Stock on the day of conversion. The
closing price shall be the reported last sale price of the Common Stock on the
New York Stock Exchange -Composite Transactions or, in case no such reported
sale takes place on such day, the average of the reported closing bid and asked
prices regular way on the New York Stock Exchange, or if the common stock is
not listed or admitted to trading on such Exchange, on the principal national
exchange on which the Common Stock is listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange, the average
of the closing bid and asked prices as furnished by any New York Stock Exchange
member firm selected from time to time by the Company for that purpose.
SECTION 1304. ADJUSTMENTS OF CONVERSION PRICE.
(1) In the case the Company shall pay or make a dividend
or other distribution on any class of capital stock of the Company in Common
Stock after the issuance of a Debt Security entitled to exercise the conversion
privilege, the conversion price of such Debt Security in effect at the opening
of business on the day following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution shall be
reduced by multiplying such conversion price by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination and the denominator
shall be the sum of such number of shares and the
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<PAGE> 67
total number of shares constituting such dividend or other distribution, such
reduction to become effective immediately after the opening of business on the
day following the date fixed for such determination. For the purposes of this
paragraph (1), the number of shares of common Stock at any time outstanding
shall include shares issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock.
(2) In case the Company shall issue, after the issuance
of a Debt Security entitled to the conversion privilege, rights or warrants to
all holders of its Common Stock entitling them to subscribe for or purchase
shares of Common Stock at a price per share less than the current market price
per share (determined as provided in paragraph (6) of this Section) of the
Common Stock on the date fixed for the determination of stockholders entitled
to receive such rights or warrants, the conversion price for such Debt Security
in effect at the opening of business on the day following the date fixed for
such determination shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock which the aggregate of the offering
price of the total number of shares of Common Stock so offered for subscription
or purchase would purchase at such current market price and the denominator
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of shares of
Common Stock so offered for subscription or purchase, such reduction to become
effective immediately after the opening of business on the day following the
date fixed for such determination; provided, however, that if all the shares of
Common Stock offered for subscription or purchase are not subscribed for or
purchased, upon the expiration of such rights or warrants the conversion price
shall be immediately readjusted to what would have been the conversion price
had the above-referenced fraction been calculated with reference to the actual
number of shares of Common Stock subscribed for or purchased rather than the
number of shares of Common Stock offered for subscription or purchase. For the
purposes of this paragraph (2), the number of shares of Common Stock at any
time outstanding shall include shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock. For purposes of this
paragraph (2), the granting of the right to purchase shares of Common stock
pursuant to any shareholder rights plan, any dividend or interest reinvestment
plan and/or any Common Stock purchase plan providing for the reinvestment of
dividends or interest payable on securities of the Company and/or the
investment of periodic optional payments at a price per share of not less than
95 percent of the current market price per share (determined as provided in
such plans) of the Common Stock (so long as such right to purchase is in no
case evidenced by the delivery of rights or warrants) shall be deemed not to
constitute an issue of rights or warrants by the Company within the meaning of
this paragraph (2).
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock after the issuance
of a Debt Security entitled to the conversion privilege, the conversion price
for such Debt Security in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be
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proportionately reduced, and, conversely, in case outstanding shares of Common
Stock shall each be combined into a smaller number of shares of Common Stock,
the conversion price of such Debt Security in effect at the opening of business
on the day following the day upon which such combination becomes effective
shall be proportionately increased, such reduction or increase, as the case may
be, to become effective immediately after the opening of business on the day
following the day upon which such subdivision or combination becomes effective.
(4) In case the Company shall, after the issuance of a
Debt Security entitled to the conversion privilege, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness or
assets (including securities, but excluding any dividend or distribution
referred to in paragraph (1) of this Section, any rights or warrants referred
to in paragraph (2) of this section and any dividend or distribution paid in
cash out of the consolidated earnings or retained earnings of the Company), the
conversion price of such Debt Security shall be adjusted so that the same shall
equal the price determined by multiplying the conversion price in effect
immediately prior to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the current market price per share
(determined as provided in paragraph (6) of this Section) of the Common Stock
on the date fixed for such determination less the then fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution filed with the Trustee) of the portion of
the assets or evidences of indebtedness so distributed applicable to one share
of Common Stock and the denominator shall be such current market price per
share of the Common Stock, such adjustment to become effective immediately
prior to the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such distribution.
(5) The reclassification (including any reclassification
upon a consolidation or merger in which the Company is the continuing
corporation) of Common Stock into securities including other than Common Stock
shall be deemed to involve (a) a distribution of such securities other than
Common Stock to all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the determination of
stockholders entitled to receive such distribution" and "the date fixed for
such determination" within the meaning of paragraph (4) of this section), and
(b) a subdivision or combination, as the case may be, of the number of shares
of Common Stock outstanding immediately prior to such reclassification into the
number of shares of Common Stock outstanding immediately thereafter (and the
effective date of such reclassification shall be deemed to be "the day upon
which such subdivision becomes effective" or "the day upon which such
combination becomes effective", as the case may be, and "the day upon which
such subdivision or combination becomes effective" within the meaning of
paragraph (3) of this Section).
(6) For the purpose of any computation under paragraphs
(2) and (4) of this Section, the current market price per share of Common Stock
on any date shall be deemed to be the average of the daily closing prices for
the 15 consecutive Business Days selected by the
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Company commencing not less than 20 nor more than 30 Business Days before the
day in question. The closing price for each day shall be determined in the
manner set forth in Section 1303.
(7) The Company may from time to time reduce, in addition to
those required by paragraphs (1), (2), (3) and (4) of this Section, the
conversion price of Debt Securities of any series by any amount for any period
if the period is at least 20 days and if the reduction is irrevocable during the
period.
(8) Notwithstanding the provisions of this Article, the
conversion price per share shall not be reduced to less than the par value
thereof as a result of any adjustment made hereunder.
(9) No adjustment in the conversion price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustment which by reason of this
paragraph (9) is not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Article
Thirteen shall be made to the nearest cent or the nearest one-hundredth of a
share, as the case may be.
SECTION 1305. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever the conversion price of any Debt Security is adjusted as
herein provided:
(1) the Company shall compute the adjusted conversion price in
accordance with Section 1304 and shall prepare an Officers'
Certificate setting forth the adjusted conversion price and showing in
reasonable detail the facts upon which such adjustment is based, and
such certificate shall forthwith be filed at each office or agency
maintained for the purpose of conversion of Debt Securities.
(2) a notice stating that the conversion price has been adjusted
and setting forth the adjusted conversion price shall be mailed by the
Company to the Holders of Debt Securities for which the conversion
price has been adjusted as herein provided.
SECTION 1306. NOTICE OF CERTAIN CORPORATE ACTION.
In case:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out
of its consolidated earnings or retained earnings; or
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(2) the Company shall authorize the granting to all the holders
of its Common Stock of rights or warrants to subscribe for or purchase
any shares of capital stock of any class or of any other rights (other
than a dividend or distribution payable in cash out of the
consolidated earnings or retained earnings of the Company); or
(3) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding shares of
Common Stock); or
(4) of the voluntary or involuntary dissolution liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained
for the purpose of conversion of Debt Securities, and shall cause to be mailed
to the Holders of Debt Securities entitled to the conversion privilege as
herein provided, at least 20 days (or 10 days in any case specified in clause
(a) or (b) above) prior to the applicable record date hereinafter specified, a
notice stating (a) the date on which a record is to be taken for the purpose of
such dividend, distribution, rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, rights or warrants are to be
determined, or (y) the date on which such reclassification, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled
to exchange their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, dissolution, liquidation or winding up.
SECTION 1307. TAXES ON CONVERSIONS.
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Common Stock on conversion of Debt
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of Common Stock in a name other than that of the Holder
of the Debt Security or Debt Securities to be converted, and no such issue or
delivery shall be made unless and until the person requesting such issue has
paid to the Company the amount of any such tax, or has established to the
satisfaction of the Company that such tax has been paid.
ARTICLE FOURTEEN
RESTRICTIONS ON TRANSFER
SECTION 1401. RESTRICTIONS ON TRANSFER.
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Any transfer of Debt Securities that, if effective, would result in
any Person becoming the Beneficial Owner of more than 9.9% of the outstanding
stock of the Company shall be deemed void ab initio, and the intended transferee
shall be deemed never to have had an interest therein. The Trustee shall have
no duty, responsibility or liability in connection with the observation or
enforcement of the aforementioned restriction on transfer or the consequences of
such restriction or the correction of any such breach or violation.
* * * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
OMEGA HEALTHCARE INVESTORS, INC.,
a Maryland corporation
By________________________________________
Its: _____________________________
Attest:
_____________________________
NBD BANK, a Michigan banking corporation
By________________________________________
Its: _____________________________
Attest:
____________________________
64
<PAGE> 1
EXHIBIT 5
January 24, 1997
Omega Healthcare Investors, Inc.
905 West Eisenhower Circle, Suite 110
Ann Arbor, Michigan 48103
RE: $150,000,000 AGGREGATE OFFERING PRICE OF SECURITIES OF
OMEGA HEALTHCARE INVESTORS, INC.
Gentlemen:
At your request, we have examined the Registration Statement on Form S-3
(the "Registration Statement") to be filed by Omega Healthcare Investors, Inc.
(the "Company") with the Securities and Exchange Commission in connection with
the registration of $150,000,000 aggregate offering price of securities (the
"Securities"), consisting of (i) shares of its common stock, par value $.10 per
share (the "Common Stock"); (ii) shares of its preferred stock, par value $1.00
per share (the "Preferred Stock"); (iii) its unsecured senior debt securities
(the "Debt Securities"); or (iv) warrants to purchase Common Stock (the "Common
Stock Warrants"), warrants to purchase Debt Securities (the "Debt Securities
Warrants"), and warrants to purchase Preferred Stock (the "Preferred Stock
Warrants"), on terms to be determined at the time of offering. The Common Stock
Warrants, the Debt Securities Warrants and the Preferred Stock Warrants shall be
referred to herein collectively as the "Securities Warrants."
We also have examined the Indenture, dated as of January 24, 1997, between
the Company and NBD Bank, as Trustee, relating to the Debt Securities (the
"Indenture"). We are familiar with the proceedings heretofore taken and proposed
to be taken by the Company in connection with the authorization, registration,
issuance and sale of the Securities.
Subject to the (i) proposed additional proceedings being taken as now
contemplated by us as your counsel prior to the issuance and sale of the
Securities; (ii) the effectiveness of the Registration Statement under the
Securities Act of 1933, as amended; (iii) the establishment of the terms of the
Debt Securities in accordance with the terms of the Indenture; (iv) the
<PAGE> 2
Omega Healthcare Investors, Inc.
January 24, 1997
Page 2
establishment of the terms of the Preferred Stock, if applicable, in accordance
with the terms of the Company's Articles of Incorporation and applicable law;
(v) the due authorization , execution and delivery of a Warrant Agreement (in
the case of Securities Warrants); and (vi) the execution, delivery and
authentication of and payment for the Securities, it is our opinion that:
1. The Common Stock, including any Common Stock that may be issuable
pursuant to the conversion of any Debt Securities, or Preferred Stock or upon
exercise of Any Common Stock Warrants, will, upon the issuance and sale thereof
in the manner specified in the Registration Statement, be validly issued, fully
paid and nonassessable.
2. The Preferred Stock, including any Preferred Stock that may be issued
upon the exercise of any Preferred Stock Warrants, will, upon the issuance and
sale thereof in the manner referred to in the Registration Statement, be validly
issued, fully paid and nonassessable.
3. The Debt Securities, including any Debt Securities that may be issued
upon the exercise of any Debt Warrants, will, upon the issuance and sale thereof
in the manner referred to in the Registration Statement, constitute legally
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws effecting creditors' rights
generally, and except that we advise you that the enforceability of the Debt
Securities is subject to the effect of general principles of equity including,
without limitations, concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific performance or
injunctive relief regardless of whether considered in a proceeding in equity or
at law.
4. The Securities Warrants will, upon the issuance and sale thereof in the
manner specified in the Registration Statement, be validly issued, fully paid
and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Argue Pearson Harbison & Myers, LLP
<PAGE> 1
EXHIBIT 12
RATIO OF EARNINGS TO FIXED CHARGES
OMEGA HEALTHCARE INVESTORS, INC.
<TABLE>
<CAPTION>
AUGUST 14, 1992 YEAR ENDED DECEMBER 31
(INCEPTION) TO ----------------------------------------
DECEMBER 31, 1992(1) 1993 1994 1995 1996E
-------------------- ------- ------- ------- -------
(IN $1,000, EXCEPT RATIO)
<S> <C> <C> <C> <C> <C>
Earnings before
extraordinary item.... $4,424 $11,573 $17,777 $29,490 $34,590
Fixed Charges:
Interest.............. 266 4,317 9,520 14,262 20,247
Amortization of debt
issue costs........ 40 288 1,029 1,063 524
------- ------- ------- ------- -------
Total fixed charges..... 306 4,605 10,549 15,325 20,771
------- ------- ------- ------- -------
Earnings before Fixed
Charges............... $4,730 $16,178 $28,326 $44,815 $55,361
======= ======= ======= ======= =======
Ratio................... 15.45x 3.51x 2.69x 2.92x 2.67x
</TABLE>
- ---------------
(1) Operations Commenced on August 14th, 1992.
<PAGE> 1
EXHIBIT 23.2
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement Form S-3 and related Prospectus of Omega Healthcare
Investors, Inc. for the registration of Common Stock, Preferred Stock, Debt
Securities, and Securities Warrants and to the incorporation by reference
therein of our reports dated March 25, 1996, with respect to the consolidated
financial statements of Omega Healthcare Investors, Inc. incorporated by
reference in its Annual Report (Form 10-K) for the year ended December 31, 1995
and the related financial statement schedules included therein, filed with the
Securities and Exchange Commission.
s/ Ernst & Young LLP
Detroit, Michigan
January 27, 1997
<PAGE> 1
EXHIBIT 25
==================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2) ___
____________________________________________
NBD BANK
(Exact name of Trustee as specified in its charter)
611 WOODWARD AVENUE
DETROIT, MICHIGAN 48226 38-0864715
(Address of principal executive offices) (Zip Code) (I.R.S.Employer
Identification No.)
NBD BANK
611 Woodward Avenue
Detroit, Michigan 48226
Corporate Trust Services
Attn: James D. Khami (313) 225-3189
(Name, address and telephone number of agent for service)
OMEGA HEALTHCARE INVESTORS, INC.
(Exact name of obligor as specified in its charter)
MARYLAND 38-3041398
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
905 W. EISENHOWER CIRCLE, SUITE 110
ANN ARBOR, MICHIGAN 48103
(Address of principal executive offices) (Zip Code)
$150,000,000 DEBT SECURITIES
(Title of Indenture Securities)
=============================================================
<PAGE> 2
1. GENERAL INFORMATION
(a) The following are the names and addresses of each examining or
supervising authority to which the Trustee is subject:
State of Michigan Financial Institutions Bureau
Federal Reserve Bank of Chicago, Chicago, Illinois
Federal Deposit Insurance Corporation, Washington,
D.C.
(b) The Trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR.
The obligor is not an affiliate of the Trustee.
3. VOTING SECURITIES OF THE TRUSTEE.
The following information is furnished as to each class of voting
securities of the Trustee:
AS OF JANUARY 22, 1997
<TABLE>
<CAPTION>
COLUMN A COLUMN B
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
<S> <C>
Common Stock, par value $12.50 per share 8,948,648 shares
</TABLE>
4. TRUSTEESHIPS UNDER OTHER INDENTURES.
The Trustee is not a Trustee under another indenture under which any
other securities, or certificates of interest or participations in any
other securities of the obligor are outstanding.
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE
OBLIGOR OR UNDERWRITERS.
Neither the Trustee nor any of the directors nor executive officers of
the Trustee is a director, officer, partner, employee, appointee or
representative of the obligor or of any underwriter for the obligor.
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
Voting securities of the Trustee owned by the obligor and its
directors, partners and executive officers, taken as a group, do not
exceed one percent of the outstanding voting securities of the
Trustee.
<PAGE> 3
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
Voting securities of the Trustee owned by any underwriter and its
directors, partners and executive officers, taken as a group, do not
exceed one percent of the outstanding voting securities of the
Trustee.
8. SECURITIES OF OBLIGOR OWNED OR HELD BY THE TRUSTEE.
The amount of securities of the obligor which the Trustee owns
beneficially or holds as collateral security for obligations in
default does not exceed one percent of the outstanding securities of
the obligor.
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
The Trustee does not own beneficially or hold as collateral security
for obligations in default any securities of an underwriter for the
obligor.
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF
CERTAIN AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
The Trustee does not own beneficially or hold as collateral security
for obligations in default voting securities of a person who, to the
knowledge of the Trustee (1) owns 10% or more of the voting securities
of the obligor, or (2) is an affiliate, other than a subsidiary, of
the obligor.
11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PER CENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
The Trustee does not own beneficially or hold as collateral security
for obligations in default any securities of a person who, to the
knowledge of the Trustee, owns 50 percent or more of the voting
securities of the obligor.
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
The obligor is not indebted to the Trustee.
13. DEFAULTS BY THE OBLIGOR.
Not applicable.
<PAGE> 4
14. AFFILIATIONS WITH THE UNDERWRITERS.
No underwriter is an affiliate of the Trustee.
15. FOREIGN TRUSTEE.
Not applicable.
16. LIST OF EXHIBITS.
(1) Articles of Incorporation of the Trustee.
(2) Certificate of Authority of the Trustee to commence business.
Incorporated by reference to Exhibit (2) filed with Amendment
No. 1 to Form T-1 Statement, Registration No. 22-4501.
(3) Authorization of the Trustee to exercise corporate trust
powers. Incorporated by reference to Exhibit (3) filed with
Amendment No. 1 to Form T-1 Statement, Registration No.
22-4501.
(4) By-laws of the Trustee.
(5) Not Applicable.
(6) Consent by the Trustee required by Section 321 (b) of the
Trust Indenture Act of 1939. Incorporated by reference to
Exhibit (6) filed with Amendment No. 1 to Form T-1
Statement, Registration No. 22-4501.
(7) Report of condition of Trustee.
(8) Not applicable.
(9) Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the Trustee, NBD BANK, a Michigan banking corporation organized and existing
under the laws of the State of Michigan, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Detroit, State of Michigan on the
22nd day of January, 1997.
<PAGE> 5
NBD BANK, (Trustee)
By:____________________
James D. Khami
Trust Officer
<PAGE> 6
NBD BANK
DETROIT, MICHIGAN
CHARTER NO. 970
______________________________________
ARTICLES OF INCORPORATION
EFFECTIVE JANUARY 1, 1995
______________________________________
FIRST.
The name of this Bank shall be NBD Bank.
SECOND.
The place where the principal office of this Bank is located is in the City of
Detroit, Wayne County, State of Michigan.
The Board of Directors shall have the power to change the location of the main
office anywhere within the City of Detroit without the approval of the
shareholders and shall have the power to establish or change the location of
any branch or branches of this Bank to any other location without the approval
of the shareholders.
THIRD.
The purpose of this Bank is to carry on the business of banking pursuant to the
Michigan Banking Code of 1969, as amended.
FOURTH.
The authorized amount of the capital stock of this Bank shall be 10,000,000
shares of common stock of the par value of $12.50 each. The authorized amount
of the capital stock of this Bank may be increased or decreased from time to
time in accordance with provisions of the laws of the State of Michigan.
FIFTH.
The period for which this Bank is organized is perpetual.
SIXTH.
A Director of the Bank shall not be personally liable to the Bank or its
shareholders for monetary damages for a breach of fiduciary duty as a Director,
except for liability: (a) for any breach of the Director's duty of loyalty to
the Bank or its shareholders; (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (c)
resulting from a violation of Section 43 of the Michigan Banking Code, as
amended; (d) for any transaction from which the Director derived an improper
personal benefit; or (e) for any act or omission occurring prior to the date
upon which this Article is duly adopted and filed as required by law. If,
following approval of this Article by the shareholders, the Michigan Banking
Code is amended to authorize corporate action further eliminating or limiting
the personal liability of Directors, then the liability of a Director of the
Bank shall be eliminated or limited to the fullest extent permitted by the
Michigan Banking Code, as amended. Any repeal, modification or adoption of any
provisions in these Articles of Incorporation inconsistent with this Article
shall not adversely affect any right or protection of a Director of the Bank
existing at the time of such repeal, modification or adoption.
SEVENTH.
These Articles of Incorporation may be changed or amended at any time by a vote
of the shareholders owning a majority of the stock of this Bank in any manner
not inconsistent with the provisions of law.
2
<PAGE> 7
NBD BANK
DETROIT, MICHIGAN
________________________________
BYLAWS
EFFECTIVE JANUARY 1, 1995
________________________________
ARTICLE I
STOCKHOLDERS' MEETINGS
Section 1. Annual Meetings. The regular Annual Meeting of the stockholders of
this Bank for the election of directors and for the transaction of any other
business as may properly come before the meeting shall be held on the third
Monday in May of each year or at such other date as from time to time may be
designated by the Board of Directors. If the election of directors shall not
be held on the day designated for an annual meeting, or at any adjournment
thereof, the Board of Directors shall cause the election to be held at a
meeting of the stockholders as soon thereafter as convenient. Nominations for
election to the Board of Directors may be made by the Board of Directors or by
any stockholders entitled to vote for the election of directors.
Section 2. Special Meetings. Except as otherwise specifically provided by
statute, special meetings of the stockholders may be called for any purpose at
any time by the Board of Directors or by the holders of at least ten per cent
(10%) of the then outstanding shares of stock.
Section 3. Place of Meetings. Annual meetings or special meetings of the
stockholders shall be held at the main office of the Bank or at such other
place within or without the State of Michigan as is established by the Board of
Directors.
Section 4. Proxies. All proxies secured for any annual or special meeting of
stockholders shall be dated and filed by the Secretary with the records of the
meeting.
Section 5. Notice of Meetings. Written notice stating the place, day and hour
of the meeting and, in case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten days, before
the date of the meeting either personally or by mail, by or at the direction of
the President, or the Secretary, or the officer or persons calling the meeting
to each stockholder of record entitled to vote at such meeting. If mailed,
such notices shall be deemed to be delivered when deposited in the United
States mail, addressed to the stockholder at his address as it appears on the
records of the Bank with postage thereon prepaid. Such notice may be waived in
writing.
Section 6. Fixing the Record Date. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders,
annual or special, or entitled to receive payment of any dividend, or in order
to make a determination of stockholders for any other proper purpose, the Board
of Directors shall fix in advance a record date and hour for any such
determination of stockholders, such date in any case to be not more than fifty
(50) days and, in case of a meeting of stockholders, not less than ten (10)
days prior to the date on which the particular action, requiring such
determination of stockholders, is to be taken. When a determination of
stockholders entitled to vote at any meeting of stockholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
Section 7. Stockholders' Action Without A Meeting. Unless otherwise
restricted in the Articles of Incorporation or these Bylaws, any action which
may be taken at the annual or any special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by all stockholders
entitled to vote with respect to the subject matter thereof.
3
<PAGE> 8
ARTICLE II
DIRECTORS
Section 1. Size and Vacancies. The Board of Directors shall consist of such
number of persons, not less than five nor more than twenty-five, as from time
to time shall be determined by a majority of the votes to which all
stockholders are at the time entitled or by resolution adopted by the
affirmative vote of a majority of the Board of Directors. Any vacancies in the
Board of Directors may be filled by action of a majority of the remaining
Directors between meetings of stockholders. Subject to the limitation as to
the number of Directors, the stockholders may elect not to exceed two less than
the full Board, and the unfilled directorships shall be considered as vacancies
and may be filled thereafter by the Board of Directors.
Section 2. Powers. The Board of Directors, a majority of whom shall be a
quorum to transact business, shall have power to manage and administer the
business and affairs of the Bank and to prescribe Bylaws for the regulation of
the business of the Bank and the conduct of its affairs not inconsistent with
law, the Articles of Incorporation and these Bylaws. Except as expressly
limited by law, all corporate powers of the Bank shall be vested in and may be
exercised by the Board of Directors.
Section 3. Officers and Employees. The Board of Directors shall have power to
elect or appoint such officers and employees as may be required to transact the
business of the Bank, to define their duties, to require bonds from them and to
fix the penalty thereof, and to continue them in office or dismiss them.
Section 4. Meetings. The regular meetings of the Board of Directors shall be
held on such date and at such time each month, within or without the State of
Michigan as shall from time to time be determined by the Board of Directors by
resolution, except that in the month in which the regular annual meeting of the
stockholders is held, the regular meeting of the Board of Directors shall be
held following and on the same day as the regular meeting of the stockholders.
When any regular meeting of the Board of Directors falls upon a holiday, the
meeting shall be held on such other day as the Board of Directors may
previously designate. Special meetings of the Board of Directors may be called
at any time by the Secretary or by any officer of higher rank than Vice
President, or any three Directors. Notice of each special meeting shall be
given personally or by duly mailing, telephoning, or telegraphing the same, at
least twenty-four hours before the meeting. Any or all Directors may waive
notice of any meeting either before or after the meeting.
Section 5. Participation In Meetings By Telephone. Unless otherwise
restricted by the Articles of Incorporation or these Bylaws, members of the
Board of Directors or any committee designated by the Board may participate in
a meeting of the Board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
Section 6. Directors' Action Without A Meeting. Unless otherwise restricted
by the Articles of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if a written consent thereto
is signed by all members of the Board or of such committee as the case may be,
and such written consent is filed with the minutes of proceedings of the Board
or committee.
ARTICLE III
COMMITTEES OF THE BOARD
Section 1. Executive Committee. There shall be a committee composed of not
less than four (4) members to be known as the Executive Committee which shall
consist of all the officer-directors of the Bank and two (2) other directors
appointed as shall be provided by the Board of Directors. Provision shall be
made by the Board of Directors for the appointment of alternates to act for
members in the event of their absence or disability.
4
<PAGE> 9
1.1 Presiding Officer. The Chairman of the Board shall act as presiding
officer at any meeting of the Executive Committee. In the event of
the absence or disability of the Chairman of the Board, the President
shall act as presiding officer. In the event of the absence or
disability of the Chairman of the Board and President, another
officer-director, if present, shall act as presiding officer. If no
officer-director member is present, an Executive Vice President of the
Bank may serve as the presiding officer or the other members present
at the meeting shall elect one of their members as presiding officer.
1.2 Quorum. Any two (2) persons, each of whom is a member or alternate
member of the Executive Committee, of whom not less than one (1) shall
be non-officer directors, shall constitute a quorum for the
transaction of business at any meeting of the Executive Committee.
1.3 Duties. The Executive Committee shall function from day to day or
such other short intervals as shall be found requisite and expedient
in the carrying on of the business and affairs of the Bank, and
between meetings of the Board of Directors, said Committee, within the
scope of the jurisdiction and functions assigned by the Board of
Directors to such Committee, shall have and may exercise, so far as
may be permitted by law, all power and authority of the Board of
Directors (including the right to authorize the seal of the Bank to be
affixed to all instruments on which the same may be required or
appropriate) and shall have power, but not by way of limitation of its
general powers, to discount and purchase bills, notes, and other
evidences of debt, and to buy and sell bills of exchange. A record of
the meetings of the Committee shall be kept, which shall be accessible
to inspection by the Directors at all times, and the Committee shall,
at each regular meeting of the Board of Directors and at such other
times as the Board of Directors may request, submit in writing a full
report of its actions. The Board of Directors shall approve or
disapprove the report of the Executive Committee, such action to be
recorded in the minutes of the meeting; provided, however, that no
rights of third parties shall be affected by any action of the Board
of Directors, if such rights have attached by virtue of action of the
Executive Committee within the scope of the jurisdiction and functions
assigned by the Board of Directors to said Committee.
Section 2. Audit Committee. There shall be appointed annually by the Board of
Directors an Audit Committee composed of not less than three (3) Directors none
of whom shall be officers of the Bank.
2.1 Duties. The Audit Committee shall:
(i) Cause to be made by the Auditing Department of the Bank a
suitable examination of the financial records and operations
of the Bank through a program of continuous internal audits.
The Committee may employ independent certified public
accounting firms of recognized standing to make such
additional examinations and audits as it may deem advisable.
The examinations caused to be made by the Committee shall meet
any examination requirements prescribed from time to time by
the Michigan Financial Institutions Bureau or other regulatory
authorities having jurisdiction and may be made in conjunction
with examinations of the Michigan Financial Institutions
Bureau.
(ii) Report to the Board of Directors at least once in each
calendar year the results of the examinations made and such
conclusions and recommendations as the Committee deems
appropriate.
Section 3. Other Committees. The Board of Directors may create and appoint
such other committees as it may, at any time or from time to time, find
necessary or desirable to facilitate and expedite the management and
administration of the affairs of the Bank. The Board of Directors shall have
power to specify the number of members of any such other committee, to
designate the powers and duties of any such other committee, and to provide for
the tenure in office of its members, its method of organization, and its
procedure for the transaction of business.
5
<PAGE> 10
ARTICLE IV
OFFICERS
Section 1. Appointment and Titles. The officers of this Bank shall include a
Chairman of the Board and a President and may include one or more Vice Chairman
of the Board, each of whom shall be a member of the Board of Directors, and
shall further include one or more Vice Presidents, a Secretary, one or more
Assistant Secretaries, and such other officers as may be from time to time
required for the prompt and orderly transaction of its business, to be elected
by the Board of Directors. The same person may hold any two or more offices,
and in any such case, these Bylaws shall be construed and understood
accordingly; provided that the same person may not hold the offices of Chairman
of the Board and Secretary or President and Secretary. The duties and
authorities of the officers of the Bank, other than those mentioned in these
Bylaws, shall be those usually pertaining to their respective offices, or as
may be designated by the Chairman of the Board, subject to the supervision and
direction of the Board of Directors.
Section 2. Term of Office of Officer-Directors. The Chairman of the Board,
the President and any Vice Chairman of the Board shall hold office for the
current year for which the Board of Directors of which they shall be members
was elected, unless they shall resign, become disqualified, or be removed; and
any vacancy occurring in any of such offices may be filled by the remaining
members of the Board of Directors.
Section 3. Chairman of the Board and President. The Chairman of the Board
shall be the chief executive officer of the Bank, shall preside at meetings of
stockholders and directors, shall have general supervision and direction of the
business of the Bank, and perform such other duties as may be designated by the
Board of Directors. The President shall perform such duties as may be
designated by the Board of Directors and, in the event of the absence or
disability of the Chairman of the Board, shall have his powers and duties. The
Vice Chairman of the Board shall perform such duties as may be designated by
the Board of Directors.
Section 4. Officers. All other officers shall be elected to hold their
respective offices at the pleasure of the Board of Directors of the Bank, and
shall have such duties, other than those mentioned herein, as shall be
prescribed by the Board of Directors.
Section 5. Secretary. The Secretary or Assistant Secretary or other officers
designated by the Board of Directors shall be responsible for stock books and
records, and other valuables of the Bank, and shall keep accurate minutes of
all meetings. The Secretary shall attend to the giving of all notices required
by these Bylaws to be given. He shall be custodian of the corporate seal,
records, documents and papers of the Bank. He shall provide for the keeping of
proper records of all transactions of the Bank. The Secretary, or Assistant
Secretary in his absence, shall have the power to sign indemnity agreements and
appoint agents by executing powers of attorney or such other similar documents
deemed necessary in the ordinary course of transacting the Bank's business. He
shall serve as Cashier, and he or his Deputy Cashiers shall have and may
exercise any and all other powers and duties pertaining by law, regulation or
practice, to the office of the Cashier, or imposed by these Bylaws. He shall
also perform such other duties as may be assigned to him, from time to time, by
the Board of Directors.
Section 6. Officers, Employees and Agents. All other officers, employees and
agents of this Bank shall be responsible for all such sums of money and
property of every kind as may be entrusted to their care or placed in their
hands by the Board of Directors, or otherwise come into their hands as
officers, employees or agents; and shall qualify under the bankers blanket bond
covering the bank officers and employees, approved as to type and amount from
year to year by the Board of Directors, conditioned for the honest and faithful
discharge of their duties as such officers, employees or agents, and that they
will faithfully and honestly apply and account for all sums of money and other
property of this Bank that may come into their hands as such officers,
employees or agents and pay over and deliver the same to the order of the Board
of Directors, or to any other person or persons authorized by the Board of
Directors to receive the same.
6
<PAGE> 11
ARTICLE V
SEAL
The Board may adopt a seal of the Bank in any form including a raised
impression or a stamp bearing the name of the Bank and the city and state of
its principal place of business. The Secretary shall be the official custodian
of the seal and shall be responsible for the safekeeping and proper use
thereof. The seal shall not be used or affixed to any paper or document
whatsoever except by the Secretary or any Assistant Secretary, or such other
officers or employees of the Bank as may be authorized by the Secretary or any
Assistant Secretary to affix the seal.
ARTICLE VI
EXECUTION OF INSTRUMENTS
Section 1. Conveyance of Real Estate. All transfers and conveyances of real
estate shall be made by the Bank, under seal, and shall be signed by the
President or any Vice President or any other officer, employee or agent of the
Bank as may be designated by the Secretary, and shall be attested by the
Secretary or any Assistant Secretary, or such other officer or employee of this
Bank as may be authorized by the Secretary to affix the seal.
Section 2. Contracts. All contracts, checks, drafts, etc., shall be signed by
the Secretary, or any officer of the rank of Vice President or higher rank, or
any other officer or employee designated by the Secretary.
Section 3. Absence of Resolution. No resolution of the Board of Directors
shall be necessary in order to authorize the execution, acknowledgement or
verification of any document by any officer who is authorized under these
Bylaws to do so, and he or she shall have full authority to act as if he or she
were duly authorized by resolution of the Board of Directors in each particular
case.
ARTICLE VII
BANKING HOURS
The Bank shall be open for business upon such hours of each day of the
year as the Chief Executive Officer or his delegate shall from time to time
direct and the Chief Executive Officer or his delegate may, in his discretion,
prescribe different banking hours for different classes of business and
different banking hours for one or more branch offices, than prescribed for the
principal banking office.
ARTICLE VIII
MINUTE BOOK
The organization papers of this Bank, the returns of the judges of the
elections, the proceedings of all regular and special meetings of the Board of
Directors and of the stockholders, the Bylaws and any amendments thereto, and
reports of the committees of the Board of Directors shall be recorded in the
minute book and the minutes of each meeting shall be signed by the person
presiding at such meeting and attested by the Secretary.
ARTICLE IX
TRANSFERS OF STOCK
Section 1. Transfers. The stock of this Bank shall be assignable and
transferable only on the books of this Bank, subject to the restrictions and
provisions of the law; and a transfer book shall be provided in which all
assignments and transfers of stock shall be made.
7
<PAGE> 12
Section 2. Record Date. The stock transfer books of the Bank shall not be
closed for the determination of stockholders entitled to dividends, but any
dividend can be made payable to stockholders of record on the date such
dividend is declared, or any subsequent date. The Bank shall be fully
protected in giving notices of meetings, paying dividends and doing such other
things as require a knowledge of the names of the stockholders of the Bank, in
relying upon the names of the stockholders as they appear upon the stock books
of the Bank.
Section 3. Form and Issuance. Certificates of stock, bearing the manual or
facsimile signature of the Chairman of the Board, President or any Vice
President, and the Secretary, or the manual or facsimile signature of any two
of such other employees of the Bank as may be designated for such purpose from
time to time by resolution of the Board of Directors, and bearing the impressed
or facsimile seal of the Bank, may be issued to stockholders. The death,
resignation, discharge or incapacity of any person whose manual or facsimile
signature appears on any certificate, shall not affect the validity of such
certificate of stock, whether such certificate has theretofore or is thereafter
issued. All certificates of stock shall state upon the face thereof that the
stock is transferable only upon the books of the Bank; and when stock is
transferred, the certificates therefore shall be returned to the Bank,
canceled, preserved and new certificates issued.
ARTICLE X
PROXIES AND CONSENTS
Proxies to vote and written consent with respect to shares of stock of
other corporations owned by or standing in the name of the Bank may be executed
and delivered from time to time on behalf of the Bank by two officers, one of
whom shall be the Chairman, President, Executive Vice President, Senior Vice
President or a Vice President and the other of whom shall be the Secretary or
an Assistant Secretary of the Bank; or by any other person or persons duly
authorized by the Board of Directors.
ARTICLE XI
TRUST DIVISION
Section 1. Exercise of Fiduciary Powers. All fiduciary powers of the Bank
shall be exercised through the Trust Division under the supervision of the
Trust Committee, subject to the Michigan Banking Code and subject to such
regulations as the Michigan Financial Institutions Bureau shall from time to
time establish. All books and records relating to fiduciary activities shall
be kept separate and distinct from the other books and records of the Bank.
Section 2. Officer in Charge. The Trust Division shall be placed under the
management and immediate supervision of an officer in charge appointed by the
Board of Directors. The duties of such officer shall be to cause the policies
and instructions of the Board of Directors, the chief executive officer and the
Trust Committee, with respect to the fiduciary accounts entrusted to the Bank,
to be carried out, and to supervise the due performance of such accounts in
accordance with law and their terms.
Section 3. Other Officers. Any other officer specifically appointed for the
performance of fiduciary activities shall exercise such powers and perform such
duties as are prescribed by these Bylaws, or as may be assigned to them by the
Board of Directors, the chief executive officer or the officer in charge of
fiduciary activities.
Section 4. Signature and Authentication of Instruments. All instruments in
which the Bank is named as Trustee or in any other fiduciary capacity and all
authentications or certificates by the Bank as Trustee under any mortgage, deed
of trust or other instrument securing bonds, debentures, notes or other
obligations of any individual, association or corporation, and all certificates
as Registrar or Transfer Agent and all certificates of deposit for stocks and
bonds, interim certificates, trust certificates and any other certificates,
document or instrument requiring execution may be signed or countersigned in
behalf of the Bank by any Trust Officer or officer of equal or higher rank
specifically elected or appointed for the performance of fiduciary duties or
the Secretary or any officer of the rank of Vice President or higher rank or by
any other person appointed for that purpose by the Board of Directors.
8
<PAGE> 13
Section 5. Custody of Investments. The investments of each fiduciary account
shall be kept separate from the assets of the Bank, and shall be placed in the
joint custody or control of not less than two of the officers or employees of
the Bank designated for that purpose by the Board of Directors. All such
officers and employees shall be adequately bonded. The investments of each
such fiduciary account shall be either: kept separate from those of all other
accounts, except as provided under the regulations of the Michigan Financial
Institutions Bureau for collective investment, or adequately identified as the
property of the relevant account.
Section 6. Trust Committee. There shall be a Trust Committee which shall be
composed of not less than five (5) members of the Board of Directors, at least
three (3) of whom shall be non-officer directors, and may include one or more
officers of the Bank who are not directors, appointed by the Board of Directors
to serve during its pleasure. The Trust Committee shall have general
supervision of and shall determine the policies relating to the administration
of fiduciary relationships. It shall have general supervision of the Trust
Division, the other committees to which the exercise of fiduciary powers of the
Bank are assigned, and the investment of funds and disposition of investments
held by the Bank in a fiduciary capacity. It shall have such other powers and
duties relating to the administration of fiduciary accounts entrusted to the
Bank as may be conferred upon it from time to time by the Board of Directors.
The Trust Committee shall meet at least once a month and shall keep minutes of
its meetings showing the disposition of all matters considered and passed upon,
and shall make monthly reports to the Board of Directors. Any three (3)
persons, each of whom is a member of the Trust Committee, of whom not less than
two (2) shall be nonofficer directors, shall constitute a quorum for the
transaction of business at any meeting of the Trust Committee.
ARTICLE XII
QUORUM
Except as otherwise provided by statute or in the Articles of Incorporation
or these Bylaws, a majority of all the stockholders or Directors, as the case
may be, shall be required to constitute a quorum to do business. Should there
be no quorum at any regular or special meeting of stockholders or Directors,
the stockholders or Directors present may adjourn from day to day until a
quorum is in attendance.
ARTICLE XIII
INDEMNIFICATION AND INSURANCE
The Bank shall indemnify and reimburse any director, officer, employee, or
agent to the fullest extent permitted by the laws of the State of Michigan, as
amended from time to time.
ARTICLE XIV
AMENDMENTS TO BYLAWS
These Bylaws may be repealed, altered, or amended, in whole or in part, by
the vote of a majority of the Directors, at any regular or special meeting of
the Board of Directors.
9
<PAGE> 14
EXHIBIT 7
Charter No. 13671 Comptroller of the Currency District
REPORT OF CONDITION CONSOLIDATING
DOMESTIC AND FOREIGN SUBSIDIARIES OF THE
NBD BANK
in the State of Michigan, at the close of business on Sep. 30, 1996 pub-
lished in response to call made by Comptroller of the Currency, under title
12, United States Code, Section 161.
<TABLE>
<CAPTION>
ASSETS
Thousands
of dollars
<S> <C>
Cash and balances due from depository institutions
Noninterest-bearing balances and currency
and coin....................................................................... 2,228,000
Interest-bearing balances...................................................... 0
Securities:
Held-to-maturity securities.................................................... 0
Available-for-sale securities.................................................. 2,064,214
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
Federal funds sold......................................................... 64,800
Securities purchased under agreements to resell............................ 0
Loans and lease financing receivables:
Loans and leases, net of unearned income............ 18,465,038
LESS: Allowance for loan and lease losses........... 271,373
Loans and leases, net of unearned income and
allowance...................................................................... 18,193,665
Assets held in trading accounts.................................................... 98,089
Premises and fixed assets (including
capitalized leases)............................................................ 341,127
Other real estate owned............................................................ 12,654
Investments in unconsolidated subsidiaries and
associated companies........................................................... -
Customers' liability to this bank on acceptances
outstanding.................................................................... 47,385
Intangible assets.................................................................. 32,220
Other assets....................................................................... 645,638
----------
Total assets....................................................................... 23,727,792
==========
</TABLE>
<PAGE> 15
LIABILITIES
<TABLE>
<S> <C>
Deposits:
In domestic offices............................................................ 16,726,460
Noninterest-bearing............................. 5,140,981
Interest-bearing................................ 11,585,479
In foreign offices, Edge and Agreement
subsidiaries, and IBFs......................................................... 271,715
Noninterest-bearing............................. 0
Interest-bearing................................ 271,715
Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased.................................................... 729,180
Securities sold under agreements to repurchase............................. 7,492
Demand notes issued to the U.S. Treasury........................................... 22,611
Trading liabilities................................................................ 47,609
Other borrowed money:
With remaining maturity of one year or less................................ 2,051,461
With remaining maturity of more than one year.............................. 302,812
Mortgage indebtedness and obligations
under capitalized leases....................................................... 12,702
Bank's liability on acceptances executed and
outstanding.................................................................... 47,385
Notes and debentures subordinated to
deposits....................................................................... 700,000
Other liabilities.................................................................. 432,684
----------
Total liabilities.................................................................. 21,352,111
----------
EQUITY CAPITAL
Common stock....................................................................... 111,858
Surplus............................................................................ 639,780
Undivided profits and capital reserves............................................. 1,615,483
Net unrealized holding gains (losses) on available-for-sale securities............. 8,557
Cumulative foreign currency translation
adjustments.................................................................... 3
----------
Total equity capital............................................................... 2,375,681
----------
Total liabilities and equity capital............................................... 23,727,792
==========
</TABLE>
I, Jason N. Hansen, Vice President of the above-named bank do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
JASON N. HANSEN
October 29, 1996
We, the undersigned directors, attest to the correctness of this state-
ment of resources and liabilities. We declare that it has been examined by
us, and to the best of our knowledge and belief has been prepared in
conformance with the instructions and is true and correct.
ALFRED R. GLANCY III
JOSEPH L. HUDSON, JR.
THOMAS H. JEFFS II
Directors
