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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) October 31, 1996
(October 25, 1996)
WELLSFORD RESIDENTIAL PROPERTY TRUST
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(Exact Name of Registrant as Specified in Charter)
Maryland 1-11550 13-3675988
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
610 Fifth Avenue, New York, New York 10020
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (212) 333-2300
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
On October 28, 1996, Wellsford Residential Property Trust,
a Maryland real estate investment trust (the "Company"), entered
into a Distribution Agreement (the "Distribution Agreement") with
J.P. Morgan Securities, Inc., First Chicago Capital Markets,
Inc., Goldman, Sachs & Co., Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Smith Barney Inc.
(collectively, the "Agents"), providing for the offer and sale
from time to time of up to an aggregate initial offering price
of U.S. $100,000,000 (or the equivalent thereof at the time of
original issuance in one or more foreign currencies or composite
currencies) of the Company's Medium-Term Notes Due Nine Months or
more from Date of Issue (the "Notes"), to or through the Agents.
The Notes were registered as part of the Company's Registration
Statement on Form S-3 (No. 333-8077), which was declared
effective by the Securities and Exchange Commission on July 24,
1996. The Notes are to be issued under the Indenture
between the Company and United States Trust Company of New York,
as trustee, dated as of October 25, 1996, as amended,
supplemented or modified from time to time (the "Indenture").
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements of Businesses Acquired.
None
(b) Pro Forma Financial Information.
None
(c) Exhibits.
1. Distribution Agreement.
4.1 Form of Fixed Rate Medium-Term Note.
4.2 Form of Floaing Rate Medium Note.
4.3 Indenture
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: October 31, 1996
WELLSFORD RESIDENTIAL PROPERTY TRUST
By: /s/ Gregory F. Hughes
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Gregory F. Hughes
Vice President-Chief Financial Officer
WELLSFORD RESIDENTIAL PROPERTY TRUST
(a Maryland real estate investment trust)
Medium-Term Notes
Due Nine Months or More from Date of Issue
DISTRIBUTION AGREEMENT
October 28, 1996
J.P. MORGAN SECURITIES INC.
60 Wall Street
New York, New York 10260
FIRST CHICAGO CAPITAL MARKETS, INC.
1 First National Plaza
Mail Suite 0315
Chicago, Illinois 60670-0315
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
World Financial Center, 10th Floor
New York, New York 10281-1380
SMITH BARNEY INC.
390 Greenwich Street
New York, New York 10013
Dear Sirs:
Wellsford Residential Property Trust, a Maryland real estate
investment trust (the "Trust"), confirms its agreement with J.P.
Morgan Securities Inc., First Chicago Capital Markets, Inc.,
Goldman, Sachs & Co., Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Smith Barney Inc. (each, an
"Agent", and collectively, the "Agents") with respect to the
issue and sale by the Trust of a series of its debt securities
entitled "Medium-Term Notes Due Nine Months or More from Date of
Issue" (the "Notes"). The Notes are to be issued, and the terms
and rights thereof established, pursuant to an Indenture, dated
as of October 25, 1996, as amended, supplemented or modified from
time to time (the "Indenture"), between the Trust and United
States Trust Company of New York, as trustee (the "Trustee"). As
of the date hereof, the Trust has authorized the issuance and
sale of up to U.S. $100,000,000 aggregate initial offering price
(or its equivalent, based upon the applicable exchange rate at
the time of issuance, in such foreign or composite currencies as
the Trust shall designate at the time of issuance) of Notes to or
through the Agents pursuant to the terms of this Agreement. It
is understood, however, that the Company may from time to time
authorize the issuance of additional Notes and that such
additional Notes may be sold through or to the Agents pursuant to
the terms of this Agreement, all as though the issuance of such
Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the
Trust to one or more Agents as principal for resale to investors
and other purchasers, or directly to investors (as may from time
to time be agreed to by the Trust and the applicable Agent), in
which case such Agent will act as an agent of the Trust in
soliciting purchases of Notes.
The Trust has filed with the Securities and Exchange
Commission (the "SEC") a registration statement on Form S-3
(No. 333-8077) for the registration of various securities,
including the Notes, under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the SEC
under the 1933 Act (the "1933 Act Regulations"). Such registra-
tion statement has been declared effective by the SEC and the
Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended (the "1939 Act"). Such registration
statement (and any further registration statements which may be
filed by the Trust for the purpose of registering additional
Notes and in connection with which this Agreement is included or
incorporated by reference as an exhibit) and the prospectus
constituting a part thereof, on the one hand, and such prospectus
and any prospectus supplement and pricing supplement relating to
the Notes, on the other hand, in each case including all
documents incorporated therein by reference, as from time to time
amended or supplemented by the filing of documents pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"),
the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively,
except that if any revised prospectus shall be provided to the
Agents by the Trust for use in connection with the offering of
the Notes, whether or not such revised prospectus is required to
be filed by the Trust pursuant to Rule 424(b) of the 1933 Act
Regulations, then, unless otherwise specified herein, the term
"Prospectus" shall refer to such revised prospectus from and
after the time it is first provided to the Agents for such use.
All references in this Agreement to financial statements and
schedules and other information which are "contained",
"included", "described", "disclosed" or "stated" in the
Registration Statement or the Prospectus (and all other
references of like import) shall be deemed to mean and include
all such financial statements and schedules and other information
which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be; and
all references in this Agreement to amendments or supplements to
the Registration Statement or the Prospectus shall be deemed to
mean and include, without limitation, the filing of any document
under the 1934 Act which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the
case may be.
It is understood that the Trust may from time to time
authorize the issuance of and may register additional Notes and
that such additional Notes may be sold to or through the Agents
pursuant to the terms of this Agreement, all as though the issu-
ance of such Notes were authorized as of the date hereof.
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to (i) the terms and conditions
stated herein and (ii) the reservation by the Trust of the right
to sell Notes to any broker or dealer (as principal) other than
an Agent or directly on its own behalf, upon such terms and
conditions as the Trust may determine from time to time, the
Trust hereby agrees that Notes will be sold to or through the
Agents and will not appoint any other agents to act on its
behalf, or to assist it, in the placement of the Notes, except as
set forth in the following sentence. Notwithstanding anything to
the contrary contained herein, the Trust may solicit or accept
offers to purchase Notes through any broker or dealer (as agent)
other than an Agent, provided that (i) such broker or dealer is
engaged on the same terms and conditions (including the same
commission schedule) as those contained in this Agreement and
(ii) the Trust shall notify the Agents promptly following the
acceptance of such offer.
(b) Sale of Notes. The Trust shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which
shall be authorized by the Trust from time to time or in excess
of the aggregate initial offering price of Notes registered
pursuant to the Registration Statement. The Agents shall have no
responsibility for maintaining records with respect to the
aggregate initial offering price of Notes sold, or of otherwise
monitoring the availability of Notes for sale, under the
Registration Statement.
(c) Purchases as Principal. The Agents shall not have any
obligation to purchase Notes from the Trust as principal, but one
or more Agents may agree from time to time to purchase Notes as
principal for resale to investors and other purchasers determined
by such Agent or Agents. Any such purchase of Notes by an Agent
as principal shall be made in accordance with Section 3(a)
hereof.
(d) Solicitations as Agent. If agreed upon by an Agent and
the Trust, such Agent, acting solely as an agent for the Trust
and not as principal, will solicit purchases of the Notes. Such
Agent will communicate to the Trust, orally, each offer to
purchase Notes solicited by it on an agency basis, other than
those offers rejected by such Agent. Such Agent shall have the
right, in its discretion reasonably exercised, to reject any
proposed purchase of Notes, as a whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained
herein. The Trust may accept or reject any proposed purchase of
Notes, in whole or in part. Such Agent shall make reasonable
efforts to assist the Trust in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by it
and accepted by the Trust. Such Agent shall not have any
liability to the Trust in the event that any such purchase is not
consummated for any reason. If the Trust shall default on its
obligation to deliver Notes to a purchaser whose offer it has
accepted, the Trust shall (i) hold such Agent harmless against
any loss, claim or damage arising from or as a result of such
default by the Trust and (ii) pay to such Agent any commission to
which it would otherwise be entitled absent such default.
(e) Reliance. The Trust and the Agents agree that any
Notes purchased by one or more Agents as principal shall be pur-
chased, and any Notes the placement of which an Agent arranges as
agent shall be placed by such Agent, in reliance on the
representations, warranties, covenants and agreements of the
Trust contained herein and on the terms and conditions and in the
manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Trust represents and warrants to each Agent as of
the date hereof, as of the date of each acceptance by the Trust
of an offer for the purchase of Notes (whether to such Agent as
principal or through such Agent as agent), as of the date of each
delivery of Notes (whether to such Agent as principal or through
such Agent as agent) (the date of each such delivery to the Agent
as principal being hereafter referred to as a "Settlement Date"),
and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented or there is filed
with the SEC any document incorporated by reference into the
Prospectus (each of the times referenced above being referred to
herein as a "Representation Date"), as follows:
(i) Due Establishment and Qualification. The
Trust is a real estate investment trust duly organized and
validly existing under and by virtue of the laws of the
State of Maryland and is in good standing with the State
Department of Assessments and Taxation of Maryland; the
Trust has the power and authority to hold mortgages, to own
and lease real property and to conduct its business as
described in the Prospectus; and the Trust is duly qualified
and is in good standing in each jurisdiction in which the
ownership of its property or the conduct of its business
requires such qualification, except where the failure to so
qualify and be in good standing would not (1) have a materi-
al adverse effect on the condition, financial or otherwise,
earnings, business affairs, prospects, properties,
shareholders' equity or results of operations of the Trust
and the Subsidiaries (as defined below), considered as a
whole, (2) adversely affect the issuance, validity, or
enforceability of the Notes or the enforceability of the
Indenture or (3) adversely affect the consummation of any of
the transactions contemplated by this Agreement (each of
(1), (2) and (3) above, a "Material Adverse Effect").
(ii) Subsidiaries. Each subsidiary of the Trust
which is a significant subsidiary (each, a "Significant
Subsidiary"), as defined in Rule 405 of Regulation C of the
1933 Act Regulations, is identified on Annex 2(a)(ii)
hereto, has been duly organized and is validly existing as a
corporation in good standing under the laws of the juris-
diction of its incorporation, has corporate power and
authority to hold mortgages, to own and lease and operate
property and conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which such qualification is required, except
where the failure to so qualify and be in good standing
would not have a Material Adverse Effect; and all of the
issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Trust,
directly or indirectly, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(iii) Joint Venture. Except for the Trust's
subsidiaries (within the meaning of Regulation S-X under the
1933 Act) (the "Subsidiaries"), the joint venture listed in
Annex 2(a)(iii) hereto (the "Joint Venture"), neither the
Trust nor any Subsidiary owns directly or indirectly any
interest or investment (whether equity or debt) in any
corporation, partnership, joint venture, business, trust or
entity (other than investments in short-term investment
securities and approximately $18.0 million in mortgage loans
outstanding to third parties); with respect to the Joint
Venture, the Trust's Subsidiary, Wellsford Holly Residential
Properties, Inc. ("WHRP"), is a joint venture partner, owns
such interests free and clear of all liens, pledges,
security interests, claims, options or other encumbrances,
is not in breach of any material provision of any agreement,
document or contract governing WHRP's rights in or to the
interests owned or held, all of which agreements, documents
and contracts are in full force and effect and, to the best
knowledge of the Trust, the other parties to such agree-
ments, documents or contracts are not in breach of any of
their respective material obligations under such agreements,
documents or contracts, and to the best knowledge of the
Trust, if the Joint Venture were included within the defi-
nition of Subsidiaries for purposes of this Agreement, there
would be no exceptions or breaches to the representations
and warranties made in this Section 4 for the Subsidiaries.
(iv) Registration Statement and Prospectus. The
Registration Statement has been declared effective by the
SEC under the 1933 Act; no stop order suspending the
effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been instituted or,
to the knowledge of the Trust, threatened by the SEC; and
the Registration Statement and the Prospectus, at the time
the Registration Statement became effective, complied, and
as of each Representation Date will comply, in all material
respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and
regulations of the SEC promulgated thereunder; the
Registration Statement, at the time it became effective, did
not, and at each time thereafter at which any amendment to
the Registration Statement becomes effective or any Annual
Report on Form 10-K is filed by the Trust with the SEC and
as of each Representation Date will not, contain an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus, as of
the date hereof does not, and as of each Representation Date
will not, include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however,
that the representations and warranties in this subsection
shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon
and in conformity with information furnished to the Trust in
writing by the Agents expressly for use in the Registration
Statement or Prospectus or to that part of the Registration
Statement consisting of the Trustee's Statement of
Eligibility on Form T-1 under the 1939 Act (the "Statement
of Eligibility").
(v) Incorporated Documents. The documents
incorporated or deemed incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3 under the 1933
Act, at the time they were or hereafter are filed with the
SEC, complied or when so filed will comply, as the case may
be, in all material respects with the requirements of the
1934 Act and the rules and regulations promulgated
thereunder (the "1934 Act Regulations"), and, when read
together with the other information in the Prospectus, at
the time the Registration Statement became effective, did
not, and at each time thereafter at which any amendment to
the Registration Statement becomes effective or Annual
Report on Form 10-K is filed by the Trust with the SEC and
as of each Representation Date will not, include an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circum-
stances under which they were or are made, not misleading.
(vi) Accountants. The accountants who certified
the financial statements and any supporting schedules
thereto included or incorporated by reference in the
Registration Statement and the Prospectus are independent
public accountants within the meaning of the 1933 Act and
the 1933 Act Regulations.
(vii) Financial Statements. The financial
statements of the Trust and the Subsidiaries included or
incorporated by reference in the Registration Statement and
the Prospectus, together with the related schedules and
notes, as well as any financial statements, schedules and
notes of any other entity or property included or
incorporated by reference therein, present fairly in all
material respects the financial position of the Trust and
the Subsidiaries, or such other entity or property, as the
case may be, at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Trust
and the Subsidiaries, or such other entity or property, as
the case may be, for the periods specified; such financial
statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved; the supporting schedules,
if any, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly in
all material respects in accordance with generally accepted
accounting principles the information required to be stated
therein; the selected financial data and the summary
financial information included or incorporated by reference
in the Registration Statement and the Prospectus present
fairly in all material respects the information shown
therein and have been compiled on a basis consistent with
that of the audited financial statements included or
incorporated by reference in the Registration Statement and
the Prospectus; and any pro forma financial statements and
the related notes thereto included or incorporated by
reference in the Registration Statement and the Prospectus
present fairly in all material respects the information
shown therein, have been prepared in accordance with the
SEC's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the
bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions
and circumstances referred to therein.
(viii) Authorization and Validity of this Agreement,
the Indenture and the Notes. This Agreement has been duly
authorized, executed and delivered by the Trust and
constitutes the valid and legally binding agreement of the
Trust enforceable against the Trust in accordance with its
terms, except to the extent that enforcement thereof may be
limited by (i) bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity) and
except as rights to indemnity and contribution hereunder may
be limited by applicable law; the Indenture has been duly
authorized, executed and delivered by the Trust and
constitutes a valid and legally binding agreement of the
Trust enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting enforcement of creditors' rights
generally or by general equity principles (regardless of
whether enforcement is considered in a proceeding in equity
or at law), and except further as enforcement thereof may be
limited by (1) requirements that a claim with respect to any
Notes payable other than in U.S. dollars (or a foreign
currency or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law
or (2) governmental authority to limit, delay or prohibit
the making of payments outside the United States; the Notes
have been duly authorized for issuance, offer and sale
pursuant to this Agreement and, when issued, authenticated
and delivered pursuant to the provisions of this Agreement
and the Indenture against payment of the consideration
therefor, the Notes will constitute valid and legally bind-
ing obligations of the Trust enforceable in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles
(regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as
enforcement thereof may be limited by (1) requirements that
a claim with respect to any Notes payable other than in U.S.
dollars (or a foreign currency or composite currency
judgment in respect of such claim) be converted into U.S.
dollars at a rate or exchange prevailing on a date
determined pursuant to applicable law or (2) governmental
authority to limit, delay or prohibit the making of payments
outside the United States; the Notes and the Indenture will
be substantially in the form heretofore delivered to the
Agents and conform in all material respects to all
statements relating thereto contained in the Prospectus; the
Indenture has been qualified under the 1939 Act; and each
holder of Notes will be entitled to the benefits of the
Indenture.
(ix) Material Changes, Material Transactions or
Distributions. Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, except as may otherwise be stated therein, (1)
there has been no material adverse change in the condition,
financial or otherwise, earnings, business affairs,
prospects, properties, shareholders' equity or results of
operations of the Trust and the Subsidiaries, considered as
a whole, whether or not arising in the ordinary course of
business, (2) there have been no transactions or
acquisitions entered into by the Trust or any of the Subsid-
iaries (whether or not arising in the ordinary course of
business) which are material with respect to the Trust and
the Subsidiaries considered as one enterprise, and (3)
except for regular quarterly distributions on the Trust's
common shares of beneficial interest, par value $.01 per
share (the "Common Shares"), Common Shares issued pursuant
to the Trust's Dividend Reinvestment and Share Purchase
Plan, or distributions declared, paid or made in accordance
with the terms of any series of the Trust's preferred shares
of beneficial interest, par value $.01 per share
(collectively, the "Preferred Shares"), there has been no
dividend or distribution of any kind declared, paid or made
by the Trust on any class of its Common Shares or Preferred
Shares.
(x) No Defaults. Neither the Trust nor any of
the Subsidiaries is, or with the giving of notice or lapse
of time or both would be, in violation of or in default
under, (i) its Amended and Restated Declaration of Trust, as
amended (the "Declaration of Trust") or Amended and Restated
By-Laws (the "By-Laws"), in the case of the Trust, or its
charter or by-laws, in the case of the Subsidiaries, or (ii)
any indenture, mortgage, deed of trust, loan agreement,
partnership agreement, other governing instruments, or other
agreement or instrument to which the Trust or any of the
Subsidiaries is a party or by which it or any of them or any
of their respective properties is bound, except, with re-
spect to this clause (ii), for violations or defaults which
individually or in the aggregate would not have a Material
Adverse Effect; the issue and sale of the Notes and the per-
formance by the Trust of all of its obligations under the
Notes, the Indenture and this Agreement and the consummation
of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Trust or any of the Subsidiaries
is a party or by which the Trust or any of the Subsidiaries
is bound or to which any of the property or assets of the
Trust or any of the Subsidiaries is subject, except for such
conflicts, breaches or defaults which individually or in the
aggregate would not have a Material Adverse Effect, nor will
any such action result in any violation of (A) the
provisions of the Declaration of Trust or the By-Laws of the
Trust or (B) any applicable law or statute or any order,
rule or regulation of any court or governmental agency or
body having jurisdiction over the Trust, the Subsidiaries or
any of their respective properties, except, with respect to
this clause (B), for violations which individually or in the
aggregate would not have a Material Adverse Effect.
(xi) Regulatory Approvals. No authorization,
approval or consent of any court or governmental agency or
body is required for the consummation by the Trust of the
transactions contemplated by this Agreement or in connection
with the sale of Notes hereunder, except such as have been
obtained or rendered, as the case may be, such the failure
of which to obtain would not have a Material Adverse Effect
or such as may be required under state securities laws.
(xii) Legal Proceedings. Other than as set forth
or contemplated in the Prospectus, there are no legal or
governmental proceedings pending or, to the knowledge of the
Trust, threatened to which the Trust or any of the
Subsidiaries is or may be a party or to which any property
of the Trust or any of the Subsidiaries is or may be the
subject which, if determined adversely to the Trust or such
Subsidiary, could individually or in the aggregate reason-
ably be expected to have a Material Adverse Effect, and, to
the best of the Trust's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others.
(xiii) Contracts. There are no contracts or
documents of the Trust or any of the Subsidiaries which are
required to be filed as exhibits to the Registration
Statement or required to be described in the Registration
Statement or the Prospectus by the 1933 Act or by the 1933
Act Regulations which have not been so filed or described;
and the descriptions of the terms of all such contracts and
documents contained or incorporated by reference in the
Registration Statement or Prospectus are complete and
correct in all material respects.
(xiv) Capitalization. The Trust's authorized,
issued and outstanding capitalization is as set forth in the
Prospectus; and all of the issued shares of beneficial
interest of the Trust have been duly and validly authorized
and issued, are fully paid and non-assessable, except as
described under the caption "Description of Shares of
Beneficial Interest" contained in the Registration Statement
(Registration No. 33-52406) on Form S-11 (the "Form S-11"),
which Form S-11 is incorporated by reference in the Trust's
Registration Statement on Form 8-A (the "Form 8-A"), which
Form 8-A is incorporated by reference in the Prospectus.
(xv) Possession of Licenses and Permits. Each of
the Trust and the Subsidiaries owns, possesses or has
obtained all material licenses, permits, certificates, con-
sents, orders, approvals and other authorizations from, and
has made all material declarations and filings with, all
federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory
organizations and all courts and other tribunals, domestic
or foreign, necessary to own or lease, as the case may be,
and to operate its properties and to carry on its business
as conducted as of the date hereof, except in each case
where the failure to obtain licenses, permits, certificates,
consents, orders, approvals and other authorizations, or to
make all declarations and filings, would not have a Material
Adverse Effect, and none of the Trust or any of the Subsid-
iaries has received any notice of any proceeding relating to
revocation or modification of any such license, permit,
certificate, consent, order, approval or other authoriza-
tion, except as described in the Registration Statement and
the Prospectus and except, in each case, where such
revocation or modification would not have a Material Adverse
Effect; and the Trust and each of the Subsidiaries are in
compliance with all laws, rules and regulations relating to
the conduct of their respective businesses as conducted as
of the date hereof, except where noncompliance with such
laws, rules or regulations would not have a Material Adverse
Effect.
(xvi) Title to Property. Each of the Trust and the
Subsidiaries have good title in fee simple to all real
property and interests in real property owned by it in each
case free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as do
not materially adversely affect or detract from the value of
such property or interests and do not materially interfere
with the use made and proposed to be made of such property
or interests by the Trust or such Subsidiary, as the case
may be.
(xvii) Insurance. The Trust and the Subsidiaries
are insured by insurers of recognized financial responsi-
bility against such losses and risks and in such amounts as
are customary in the business in which they are engaged and
is adequate for the value of their properties; all policies
of insurance insuring the Trust or the Subsidiaries or their
respective business, assets, employees, officers and
trustees or directors, as the case may be, are in full force
and effect; the Trust and the Subsidiaries are in compliance
with the terms of such policies and instruments in all
material respects and there are no claims by the Trust or by
the Subsidiaries under any such policy or instrument as to
which any insurance company is denying liability or de-
fending under a reservation of rights clause, other than
claims which individually or in the aggregate would not have
a Material Adverse Effect.
(xviii) Internal Revenue Code; Investment Company
Act. With respect to its taxable years ended December 31,
1995, 1994 and 1993 and for all other tax periods regarding
which the Internal Revenue Service is or will be entitled to
assert any claim against the Trust, the Trust has met the
requirements for qualification as a real estate investment
trust under Sections 856 through 860 of the Internal Revenue
Code of 1986, as amended (the "Internal Revenue Code"), and
the Trust's present and contemplated organization,
ownership, operations, assets and income continue to meet
such requirements; and the Trust is not required to be
registered or regulated under the Investment Company Act of
1940, as amended (the "1940 Act").
(xix) Investments. The investments of the Trust
described in the Prospectus are permitted investments under
the Declaration of Trust of the Trust.
(xx) Environmental Laws. None of the Trust or any
of the Subsidiaries or, to the actual knowledge of the
Trust, any other person, has caused or permitted (a) the
unlawful presence of any hazardous substances, hazardous
materials, toxic substances or waste materials (collec-
tively, "Hazardous Materials") on any of the properties
owned by the Trust or any of the Subsidiaries (the
"Properties") or (b) any unlawful spills, releases, dis-
charges or disposal of Hazardous Materials to have occurred
or be presently occurring on or from such Properties as a
result of any construction on or operation and use of such
Properties, which presence or occurrence would, individually
or in the aggregate, have a Material Adverse Effect; and in
connection with the construction on or operation and use of
the Properties, the Trust and the Subsidiaries have not
failed to comply, in any material respect, with all appli-
cable local, state and federal environmental laws, regu-
lations, ordinances and administrative and judicial orders
relating to the generation, recycling, reuse, sale, storage,
handling, transport and disposal of any Hazardous Materials.
(xxi) Mortgages and Deeds of Trust. The mortgages
and deeds of trust encumbering the Properties described in
the Prospectus are not (i) cross-defaulted to any indebt-
edness other than indebtedness of the Trust or any of the
Subsidiaries or (ii) cross-collateralized to any property
not owned by the Trust or any of the Subsidiaries.
(xxii) Changes in Capitalization. Subsequent to the
respective dates as of which information is given in the
Prospectus, there has not been any material change in the
shares of beneficial interest, short-term debt or long-term
debt of the Trust, except as described in or contemplated by
the Prospectus.
(xxiii) Accounting Controls. The Trust maintains a
system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authoriza-
tion; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with
generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability
for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to
any differences.
(xxiv) Commodity Exchange Act. The Notes, when
issued, authenticated and delivered pursuant to the
provisions of this Agreement and the Indenture, will be
excluded or exempted under the provisions of the Commodity
Exchange Act, 7 U.S.C. Section 1 et. seq.
(b) Additional Certifications. Any certificate signed by
any trustee or executive officer of the Trust and delivered to
one or more Agents or to counsel for the Agents in connection
with an offering of Notes to one or more Agents as principal or
through an Agent as agent shall be deemed a representation and
warranty by the Trust to such Agent or Agents as to the matters
covered thereby on the date of such certificate.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Unless otherwise agreed by an
Agent and the Trust, Notes shall be purchased by one or more
Agents as principal in accordance with terms agreed upon by such
Agent or Agents and the Trust (which terms shall be agreed upon
orally (with written confirmation prepared promptly by such Agent
or Agents and delivered promptly to the Trust) and, unless
otherwise agreed, shall, to the extent applicable, include those
terms specified in Exhibit A hereto). An Agent's commitment to
purchase Notes as principal shall be deemed to have been made on
the basis of the representations and warranties of the Trust
herein contained and shall be subject to the terms and conditions
herein set forth. Unless the context otherwise requires,
references herein to "this Agreement" shall include the
applicable agreement of one or more Agents to purchase Notes from
the Trust as principal.
Each purchase of Notes, unless otherwise agreed, shall
be at a discount from the principal amount of each such Note
equivalent to the applicable commission set forth in Schedule A
hereto. The Agents may engage the services of any other broker
or dealer in connection with the resale of the Notes purchased by
them as principal and may allow all or any portion of the
discount received in connection with such purchases from the
Trust to such brokers and dealers. At the time of each purchase
of Notes by one or more Agents as principal, such Agent or Agents
shall specify the requirements for the officers' certificate,
opinions of counsel and comfort letter pursuant to Sections 7(b),
7(c) and 7(d) hereof. In addition, such Agent or Agents shall
promptly notify the Trust when the related Notes are no longer
held as principal pursuant hereto.
(b) Solicitations as Agent. On the basis of the represen-
tations and warranties herein contained, but subject to the terms
and conditions herein set forth, when agreed by the Trust and an
Agent, such Agent, as an agent of the Trust, will use its
reasonable efforts to solicit offers to purchase the Notes upon
the terms and conditions set forth in the Prospectus. The Agents
are not authorized to appoint sub-agents with respect to Notes
sold through them as agent. All Notes sold through an Agent as
agent will be sold at 100% of their principal amount unless
otherwise agreed to by the Trust and such Agent.
The Trust reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through an Agent,
as agent, commencing at any time for any period of time or perma-
nently. As soon as practicable after receipt of instructions
from the Trust, such Agent will suspend solicitation of purchases
from the Trust until such time as the Trust has advised such
Agent that such solicitation may be resumed.
The Trust agrees to pay each Agent a commission, in the form
of a discount, equal to the applicable percentage of the
principal amount of each Note sold by the Trust as a result of a
solicitation made by such Agent as set forth in Schedule A here-
to.
(c) Administrative Procedures. The purchase price,
interest rate or formula, maturity date and other terms of the
Notes (as applicable) specified in Exhibit A hereto shall be
agreed upon by the Trust and the applicable Agent or Agents and
specified in a pricing supplement to the Prospectus (each, a
"Pricing Supplement") to be prepared in connection with each sale
of Notes. Except as may be otherwise specified in the applicable
Pricing Supplement, the Notes will be issued in denominations of
U.S. $1,000 or any larger amount that is an integral multiple of
U.S. $1,000. Administrative procedures (the "Procedures") with
respect to the sale of Notes shall be agreed upon from time to
time by the Trust, the Agents and the Trustee. The current
Procedures are attached hereto as Exhibit B. The Agents and the
Trust agree to perform, and the Trust agrees to cause the Trustee
to agree to perform, their respective duties and obligations
specifically provided to be performed by them in the Procedures.
(d) Obligations Several. The Trust acknowledges that the
obligations of the Agents under this Agreement are several and
not joint.
SECTION 4. Covenants of the Trust.
The Trust covenants with the Agents as follows:
(a) Notice of Certain Events. The Trust will notify the
Agents immediately, and confirm such notice in writing, of (i)
the effectiveness of any amendment to the Registration Statement,
(ii) the transmittal to the SEC for filing of any amendment or
supplement to the Prospectus (it being understood that only the
applicable Agent(s) will receive notice and a copy of the related
pricing supplement) or any document to be filed pursuant to the
1934 Act (other than any amendment, supplement or document
relating solely to securities other than the Notes), (iii) the
receipt of any comments from the SEC with respect to the
Registration Statement or the Prospectus, (iv) any request by the
SEC for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information relating to the Notes, (v) the issuance by the SEC of
any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose
and (vi) any change or withdrawal in the rating assigned by
Moody's Investors Service, Inc. or Standard & Poor's Ratings
Group to any debt securities of the Trust or the public
announcement by Moody's Investors Service, Inc. or Standard &
Poor's Ratings Group that it has under surveillance or review,
with possible negative implications, its rating of any debt
securities of the Trust. The Trust will make every reasonable
effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Notice of Certain Proposed Filings. The Trust will
give the Agents advance notice of its intention to file any
additional registration statement with respect to the registra-
tion of additional Notes, any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (other
than an amendment or supplement providing solely for a change in
the interest rate or formula applicable to the Notes or relating
solely to the issuance and/or offering of securities other than
the Notes), whether by the filing of documents pursuant to the
1934 Act or the 1933 Act or otherwise. In the event of such
additional registration statement, amendment or supplement, the
Trust will furnish to the Agents copies thereof a reasonable time
in advance of the related proposed filing or use thereof, as the
case may be, and will not file any such additional registration
statement, amendment or supplement in a form to which the Agents
or counsel for the Agents shall reasonably object; provided,
however, that, in lieu of the foregoing, in the event that the
conditions of subsection (k) of this Section have been satisfied
and the Trust has notified the Agents in writing that offerings
of Notes are suspended, then the Trust shall be required to
deliver copies of all such additional registration statements,
amendments and supplements at least five business days prior to
the date that offerings of Notes may be resumed.
(c) Copies of the Registration Statement and the Prospec-
tus. The Trust will deliver to the Agents as many signed and
conformed copies of the Registration Statement (as originally
filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as the Agents
reasonably request. The Trust will furnish to the Agents as many
copies of the Prospectus (as amended or supplemented) as the
Agents reasonably request so long as the Agents are required to
deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Trust will
prepare, with respect to any Notes to be sold to or through one
or more Agents pursuant to this Agreement, a Pricing Supplement
with respect to such Notes in a form previously approved by the
Agents and will file such Pricing Supplement in accordance with
Rule 424(b) under the 1933 Act within the appropriate time period
specified therein.
(e) Revisions of Prospectus -- Material Changes. Except as
otherwise provided in subsection (k) of this Section, if at any
time during the term of this Agreement any event shall occur or
condition exist as a result of which it is necessary, in the
opinion of counsel for the Agents or counsel for the Trust, to
amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the
statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is delivered to
a purchaser, or if it shall be necessary, in the opinion of
either such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the require-
ments of the 1933 Act or the 1933 Act Regulations, the Trust
shall give immediate notice, confirmed in writing, to the Agents
to cease the solicitation of offers to purchase the Notes in
their capacity as agents and to cease sales of any Notes they may
then own as principal, and the Trust will promptly amend the
Registration Statement and the Prospectus, whether by filing
documents pursuant to the 1934 Act or the 1933 Act or otherwise,
as may be necessary to correct such untrue statement or omission
or to make the Registration Statement and Prospectus comply with
such requirements.
(f) Prospectus Revisions -- Periodic Financial Information.
Except as otherwise provided in subsection (k) of this Section,
on or prior to the date on which there shall be released to the
general public interim financial statement information related to
the Trust with respect to each of the first three quarters of any
fiscal year or preliminary financial statement information with
respect to any fiscal year, the Trust shall furnish such informa-
tion in writing to the Agents and shall cause the Prospectus to
be amended or supplemented to include or incorporate by reference
financial information with respect thereto and corresponding
information for the comparable period of the preceding fiscal
year, as well as such other information and explanations as shall
be required by the 1933 Act or the 1933 Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information.
Except as otherwise provided in subsection (k) of this Section,
on or prior to the date on which there shall be released to the
general public financial information included in or derived from
the audited financial statements of the Trust for the preceding
fiscal year, the Trust shall furnish such information in writing
to the Agents and shall cause the Registration Statement and the
Prospectus to be amended, whether by the filing of documents
pursuant to the 1934 Act or the 1933 Act or otherwise, to include
or incorporate by reference such audited financial statements and
the report or reports, and consent or consents to such inclusion
or incorporation by reference, of the independent accountants
with respect thereto, as well as such other information and
explanations as shall be required by the 1933 Act or the 1933 Act
Regulations.
(h) Earnings Statements. The Trust will make generally
available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby,
an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering each twelve month
period beginning, in each case, not later than the first day of
the Trust's fiscal quarter next following the "effective date"
(as defined in such Rule 158) of the Registration Statement with
respect to each sale of Notes.
(i) Blue Sky Qualifications. The Trust will endeavor, in
cooperation with the Agents, to qualify the Notes for offering
and sale under the applicable securities laws of such states and
other jurisdictions of the United States as the Agents may desig-
nate, and will maintain such qualifications in effect for as long
as may be required for the distribution of the Notes; provided,
however, that the Trust shall not be obligated to file any
general consent to service of process or to qualify as a foreign
entity in any jurisdiction in which it is not so qualified. The
Trust will file such statements and reports as may be required by
the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Trust will promptly advise the
Agents of the receipt by the Trust of any notification with
respect to the suspension of the qualification of the Notes for
sale in any such state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(j) 1934 Act Filings. The Trust, during the period when
the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act in connection with sales of the Notes, will file all
documents required to be filed with the SEC pursuant to Sections
13, 14 or 15(d) of the 1934 Act within the time periods
prescribed by the 1934 Act and the 1934 Act Regulations.
(k) Suspension of Certain Obligations. The Trust shall not
be required to comply with the provisions of subsections (b),
(e), (f) or (g) of this Section during any period from the time
(i) the Agents shall have suspended solicitation of purchases of
the Notes in their capacity as agents pursuant to a request from
the Trust and (ii) no Agent shall then hold any Notes purchased
as principal pursuant hereto, until the time the Trust shall
determine that solicitation of purchases of the Notes should be
resumed or an Agent shall subsequently purchase Notes from the
Trust as principal.
(l) Code Requirements. The Trust will use its best
efforts to continue to meet the requirements to qualify as a
"real estate investment trust" under the Code for the taxable
year in which sales of the Notes are to occur.
(m) Limit on Amount of Offered Securities. Immediately
after any sale of Notes by the Trust hereunder, the aggregate
amount of Notes which shall have been issued and sold by the
Trust hereunder and of any debt securities of the Trust (other
than the Notes) that shall have been issued and sold pursuant to
the Registration Statement will not exceed the amount of debt
securities registered under the Registration Statement.
(n) Offerings of Other Debt. From the date of any
agreement by an Agent to purchase Notes as principal and
continuing to and including the business day following the
related Settlement Date, the Trust will not offer, sell, contract
to sell or otherwise dispose of any debt securities, or options
or warrants for any such debt securities, of or guaranteed by the
Trust which are substantially similar to the Notes, without the
prior written consent of such Agent.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to purchase Notes from the
Trust as principal and to solicit offers to purchase Notes as
agent of the Trust, and the obligations of any purchasers of
Notes sold through an Agent as agent, will be subject to the
accuracy of the representations and warranties on the part of the
Trust herein and to the accuracy of the statements of the Trust's
trustees or executive officers made in any certificate furnished
pursuant to the provisions hereof, to the performance and
observance by the Trust of all its covenants and agreements
herein contained and to the following additional conditions prec-
edent:
(a) Legal Opinions. On the date hereof, the Agents shall
have received the following legal opinions, dated as of the date
hereof and in form and substance satisfactory to the Agents:
(1) Opinion of Trust Counsel. The favorable opinion
of Robinson Silverman Pearce Aronsohn & Berman LLP, counsel
to the Trust (or, with respect to matters involving the laws
of the State of Maryland, Ballard Spahr Andrews &
Ingersoll), to the effect that:
(i) The Trust is a real estate investment trust
duly organized and existing under and by virtue of the
laws of the State of Maryland and is in good standing
with the State Department of Assessments and Taxation
of Maryland.
(ii) The Trust has power and authority to own, lease
and operate its current properties and to conduct its
business as described in the Prospectus and possesses
all licenses, permits, authorizations, consents and
orders required for the conduct of its business as
described in the Prospectus, the absence of which would
materially adversely affect the business of the Trust
and its subsidiaries considered as one enterprise.
(iii) This Agreement has been duly authorized,
executed and delivered by the Trust and is a valid and
legally binding agreement of the Trust, enforceable
against the Trust in accordance with its terms, except
to the extent that enforcement thereof may be limited
by (i) bankruptcy, insolvency, reorganization, morato-
rium or similar laws now or hereafter in effect
relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or
in equity) and except as rights to indemnity and
contribution hereunder may be limited by applicable
law.
(iv) The Indenture has been duly authorized,
executed and delivered by the Trust and (assuming the
Indenture has been duly authorized, executed and
delivered by the Trustee) constitutes a legal, valid
and binding agreement of the Trust, enforceable in
accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or
by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or
at law), and except further as enforcement thereof may
be limited by (1) requirements that a claim with
respect to any Notes payable other than in U.S. dollars
(or a foreign currency or composite currency judgment
in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (2)
governmental authority to limit, delay or prohibit the
making of payments outside the United States.
(v) The Notes, in the form(s) certified by the
Trust as of the date hereof, have been duly authorized
for issuance, offer and sale pursuant to this Agreement
by all necessary trust action and, when issued,
authenticated and delivered pursuant to the provisions
of this Agreement and the Indenture against payment of
the consideration therefor, will constitute valid and
legally binding obligations of the Trust, enforceable
in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or
by general equity principles (regardless of whether
enforcement is considered in a proceeding in equity or
at law), and except further as enforcement thereof may
be limited by (1) requirements that a claim with
respect to any Notes payable other than in U.S. dollars
(or a foreign currency or composite currency judgment
in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (2)
governmental authority to limit, delay or prohibit the
making of payments outside the United States; and each
holder of Notes will be entitled to the benefits of the
Indenture.
(vi) The Notes and the Indenture conform in all
material respects to the statements relating thereto in
the Prospectus; and the statements in the Prospectus
under the captions "Description of Notes", "Special
Provisions Relating to Foreign Currency Notes",
"Description of Debt Securities", "ERISA Matters",
"Certain United States Federal Income Tax
Considerations" and "Federal Income Tax
Considerations," the statements in the Prospectus
incorporated by reference from Item 3 of Part I of the
Trust's Annual Report on Form 10-K most recently filed
with the SEC and from Item 1 of Part II of the Trust's
Quarterly Reports on Form 10-Q, if any, filed with the
SEC since such Annual Report, and the statements in
Item 15 of the Registration Statement, insofar as such
statements constitute a summary of the legal matters,
proceedings or documents referred to therein, are true
and correct in all material respects.
(vii) The Indenture has been duly qualified under the
1939 Act.
(viii) The Registration Statement has been declared
effective by the SEC under the 1933 Act and, to the
best of such counsel's knowledge and information, no
stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by
the SEC.
(ix) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference
therein, as of their respective effective or issue
dates, comply as to form in all material respects with
the requirements for registration statements on Form S-
3 under the 1933 Act and the 1933 Act Regulations; it
being understood, however, that no opinion need be
rendered with respect to the financial statements,
schedules and other financial and statistical data
included or incorporated by reference in the
Registration Statement or the Prospectus or with
respect to the Statement of Eligibility of the Trustee.
(x) Each document filed pursuant to the 1934 Act
(other than the financial statements, schedules and
other financial and statistical data included therein,
as to which no opinion need be rendered) and
incorporated or deemed to be incorporated by reference
in the Prospectus complied when so filed as to form in
all material respects with the 1934 Act and the 1934
Act Regulations.
(xi) The Notes, in the form(s) certified by the
Trust as of the date hereof, when issued, authenticated
and delivered pursuant to the provisions of this
Agreement and the Indenture, will be excluded or
exempted from the provisions of the Commodity Exchange
Act; provided that such counsel need not express any
opinion as to compliance with Part 34 of the Commodity
Exchange Act ("Regulation of Hybrid Instruments"), or
any exclusion thereunder, of Notes bearing interest
determined by reference to one or more interest rate or
other indices not described in the Prospectus.
(xii) The Trust is not required to be registered or
regulated under the 1940 Act.
(xiii) The issue and sale of the Notes and the perfor-
mance by the Trust of all of its obligations under the
Notes, the Indenture and this Agreement and the con-
summation of the transactions herein and therein
contemplated, assuming the Trust complies with the
covenants and agreements set forth below the applicable
agreements identified on Annex 5(a)(1)(xiii) attached
hereto at the time of, and immediately after giving
effect to, the issuance and sale of the Notes, will not
conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument, known to such counsel to
which the Trust or any of the Subsidiaries is a party
or by which the Trust or any of the Subsidiaries is
bound or to which any of the property or assets of the
Trust or any of the Subsidiaries is subject (including,
without limitation, the agreements identified on Annex
5(a)(1)(xiii) attached hereto), except for such
conflicts, breaches or defaults which individually or
in the aggregate would not have a Material Adverse Ef-
fect, nor will any such action result in any violation
of the provisions of the Declaration of Trust or By-
Laws of the Trust or any applicable law or statute or
any order, rule or regulation of any court or govern-
mental agency or body having jurisdiction over the
Trust, any of the Subsidiaries or any of their respec-
tive properties, the violation of which would have a
Material Adverse Effect; and no authorization, approval
or consent of any court or governmental authority or
agency is required that has not been obtained in
connection with the consummation by the Trust of the
transactions contemplated by this Agreement and the
Indenture except such as may be required under state
securities laws or real estate syndication laws or such
the failure of which to obtain would not have a
Material Adverse Effect.
(xiv) Other than as set forth or contemplated in the
Prospectus, to the best of such counsel's knowledge
there are no legal or governmental proceedings pending
(in which service or notice of process has been
received by an employee or other representative of the
Trust or any of the Subsidiaries) or, to the best of
such counsel's knowledge, threatened to which the Trust
or any of the Subsidiaries is or may be a party or to
which any property of the Trust or the Subsidiaries is
or may be the subject which, if determined adversely to
the Trust or such Subsidiaries, could individually or
in the aggregate reasonably be expected to have a
Material Adverse Effect; to the best of such counsel's
knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened
by others.
(xv) To the best of such counsel's knowledge and
information, there are no contracts, indentures,
mortgages, loan agreements, notes, leases or other
instruments of a character required to be described or
referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the
Registration Statement other than those described or
referred to therein or filed as exhibits thereto, the
descriptions thereof or references thereto are correct
in all material respects, and, to the best of such
counsel's knowledge and information, no default exists
in the due performance or observance of any obligation,
agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note,
lease or other instrument so described, referred to or
filed which would have a Material Adverse Effect.
(xvi) The Trust's authorized, issued and outstanding
shares of beneficial interest are as set forth in the
Prospectus under the captions "Description of Preferred
Shares" and "Description of Common Shares" and all of
the issued shares of beneficial interest of the Trust
as described in the Prospectus under the captions
"Description of Preferred Shares" and "Description of
Common Shares" have been duly and validly authorized
and issued, are fully paid and non-assessable, except
as described under the caption "Description of Shares
of Beneficial Interest" contained in the Form S-11,
which is incorporated by reference in the Form 8-A,
which is incorporated by reference in the Prospectus;
(xvii) To the best of such counsel's knowledge, based
solely upon inquiries of certain officers of the Trust
and representations of the Trust, neither the Trust nor
any of the Subsidiaries is, or with the giving of no-
tice or lapse of time or both would be, in violation of
or in default under, (i) its Declaration of Trust or
By-Laws, in the case of the Trust, or its charter or
by-laws, in the case of the Subsidiaries, or (ii) any
indenture, mortgage, deed of trust, loan agreement,
partnership agreement, other governing instruments, or
other agreement or instrument known to such counsel to
which the Trust or any of the Subsidiaries is a party
or by which it or any of them or any of their respec-
tive properties is bound, except with respect to this
clause (ii), for violations or defaults which individu-
ally or in the aggregate would not have a Material
Adverse Effect.
(xviii) To the best of such counsel's knowledge based
solely upon representations of the Trust, the Trust (i)
has qualified to be taxed as a real estate investment
trust pursuant to Sections 856 through 860 of the
Internal Revenue Code, for the fiscal years ended De-
cember 31, 1993 through December 31, 1995, (ii) pres-
ently has and contemplates having organization, owner-
ship, operations, assets and income such that the Trust
will be in a position under present law to so qualify
for the fiscal year ending December 31, 1996 and (iii)
intends to endeavor to continue to so qualify in subse-
quent years.
(xix) The investments of the Trust described in the
Prospectus are permitted investments under the Declara-
tion of Trust of the Trust.
(2) Additional Opinions of Trust Counsel. The
favorable opinion of Robinson Silverman Pearce Aronsohn &
Berman LLP, or other counsel satisfactory to the Agents, to
the effect that:
(i) The Trust is duly qualified as a foreign entity
to transact business and is in good standing in each
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify and be in good standing would not
have a Material Adverse Effect.
(ii) Each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation
in good standing under the laws of the jurisdiction of
its incorporation and has corporate power and authority
to hold mortgages, own, lease and operate its
properties and conduct its business as described in the
Prospectus; and all of the issued and outstanding
capital stock of each Significant Subsidiary has been
duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Trust, directly or
indirectly, free and clear of any perfected security
interests, or to the best of such counsel's knowledge,
any other liens, encumbrances, security interests and
claims.
(iii) Each Significant Subsidiary is duly qualified
as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such
qualification is required, except where the failure to
so qualify and be in good standing would not have a
Material Adverse Effect.
(3) Opinion of Counsel to the Agents. The favorable
opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel
to the Agents, covering the validity of the Indenture, the
Notes, the Registration Statement, the Prospectus and other
related matters as the Agents may reasonably request.
Skadden, Arps, Slate, Meagher & Flom LLP may rely upon, or
assume the accuracy of, the opinion of Ballard Spahr Andrews
& Ingersoll as to matters involving the laws of the State of
Maryland.
(4) Disclosure Documents. In giving their opinions
required by subsection (a)(1) and (a)(3), respectively, of
this Section 5, Robinson Silverman Pearce Aronsohn & Berman
LLP and Skadden, Arps, Slate, Meagher & Flom LLP shall each
additionally state that nothing has come to their attention
that would lead them to believe that the Registration
Statement, at the time it became effective (or, if an
amendment to the Registration Statement or an Annual Report
on Form 10-K has been filed by the Trust with the SEC
subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective
or at the time of the most recent such filing, as the case
may be) or at the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or
necessary in order to make the statements therein not
misleading or that the Prospectus, at the date hereof (or,
if such opinion is being delivered in connection with the
purchase of Notes from the Trust by one or more Agents as
principal pursuant to Section 7(c) hereof, at the date of
any agreement by such Agent or Agents to purchase Notes as
principal and at the Settlement Date with respect thereto,
as the case may be) (included or) includes an untrue
statement of a material fact or (omitted or) omits to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading (it being understood that counsel
need not comment on the financial statements, schedules and
other financial and statistical data included or
incorporated by reference in the Registration Statement or
the Prospectus).
In giving their opinions, the foregoing counsel may
rely upon, or assume the accuracy of, (1) as to all matters
of fact, the certificates and written statements of officers
and employees of and accountants for the Trust and (2) as to
the qualification and good standing of the Trust or any of
its subsidiaries to do business in any state or
jurisdiction, the certificates of appropriate government
officials or opinions of counsel in such jurisdictions.
(b) Officer's Certificate. On the date hereof, the Agents
shall have received a certificate of the Chairman of the Board,
Chief Executive Officer, President or any Vice President and the
principal financial officer or principal accounting officer of
the Trust, dated as of the date hereof, to the effect that (i)
since the respective dates as of which information is given in
the Prospectus or, if such certificate is required pursuant to
Section 7(b) hereof, since the date of the agreement, if any, by
one or more Agents to purchase Notes from the Trust as principal,
(A) there has not been any material adverse change in the
condition, financial or otherwise, earnings, business affairs,
prospects, properties, shareholders' equity or results of
operations of the Trust and the Subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, and
(B) there has been no downgrading or withdrawal, and the Trust
has not received any notice of (1) any intended or potential
downgrading or (2) any review or surveillance with possible
negative implications, in the rating accorded any securities of
or guaranteed by the Trust by any "nationally recognized
statistical rating organization," as that term is defined by the
SEC for purposes of Rule 436(g)(2) under the 1993 Act, (ii) the
representations and warranties of the Trust contained in Section
2 hereof are true and correct with the same force and effect as
though expressly made at and as of the date of such certificate
and (iii) the Trust has performed or complied with all agreements
and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the date of such certificate.
As used in this Section 5(b), the term "Prospectus" means the
Prospectus in the form first provided to the applicable Agent or
Agents for use in confirming sales of the Notes.
(c) Comfort Letter of Ernst & Young LLP. On the date
hereof, the Agents shall have received a letter from Ernst &
Young LLP, dated as of the date hereof, in form and substance
satisfactory to the Agents, containing statements and information
ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information relating to the Trust contained in or
incorporated by reference in the Registration Statement and the
Prospectus, including, without limitation, the following:
(i) They are independent public accountants with respect
to the Trust and its subsidiaries within the meaning of the
1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations.
(ii) It is their opinion that the consolidated financial
statements and supporting schedules of the Trust and its
subsidiaries included or incorporated by reference in the
Registration Statement and Prospectus covered by their
opinions therein comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act,
the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest
available interim financial statements of the Trust and its
indicated subsidiaries, a reading of the minute books of the
Trust and such subsidiaries since the end of the most recent
fiscal year with respect to which an audit report has been
issued, inquiries of and discussions with certain officials
of the Trust and such subsidiaries responsible for financial
and accounting matters with respect to the unaudited
consolidated financial statements included or incorporated
by reference in the Registration Statement and Prospectus
and the latest available interim unaudited financial
statements of the Trust and its subsidiaries, and such other
inquiries and procedures as may be specified in such letter,
and on the basis of such inquiries and procedures, nothing
came to their attention that caused them to believe that:
(A) any material modifications should be made to the
unaudited consolidated financial statements of the Trust and
its subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus for them to be in
conformity with generally accepted accounting principles in
the United States, (B) the unaudited consolidated financial
statements of the Trust and its subsidiaries included or
incorporated by reference in the Registration Statement and
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations or (C) at a specified date not
more than three days prior to the date of such letter, there
was any change in the consolidated capital stock, any
increase in consolidated long-term debt or any decrease in
the consolidated net current assets or consolidated net
assets of the Trust and its subsidiaries, in each case as
compared with the amounts shown on the most recent con-
solidated balance sheet of the Trust and its subsidiaries
included or incorporated by reference in the Registration
Statement and Prospectus or, during the period from the date
of such balance sheet to a specified date not more than
three days prior to the date of such letter, there were any
decreases, as compared with the corresponding period in the
preceding year, in consolidated revenues or in the total or
per-share amounts of income before extraordinary items or of
net income of the Trust and its subsidiaries, except in all
instances for changes, increases or decreases that the
Registration Statement and Prospectus disclose have occurred
or may occur or except for such exceptions enumerated in
such letter as shall have been agreed to by the Agents and
the Trust.
(iv) In addition to the audit referred to in their
opinions and the limited procedures referred to in clause
(iii) above, they have carried out certain specified
procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which
are included or incorporated by reference in the
Registration Statement and the Prospectus and which are
specified by the Agents, and have found such amounts,
percentages and financial information to be in agreement
with the relevant accounting, financial and other records of
the Trust and its subsidiaries identified in such letter.
(d) Comfort Letter of Applicable Accountants. On the date
hereof, the Agents shall have received, with respect to the
financial statements and any supporting schedules for properties
or entities acquired by the Trust which are included or
incorporated by reference in the Registration Statement and the
Prospectus, a letter from the applicable accountants covering
such financial statements and supporting schedules, dated as of
the date hereof, in form and substance satisfactory to the
Agents, containing statements and information ordinarily included
in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information
relating to the properties or entities so acquired, including,
without limitation, the following statements: (i) they are
independent public accountants within the meaning of the 1933
Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations with respect to the Trust and its subsidiaries and
the applicable properties or entities acquired by the Trust, (ii)
it is their opinion that the financial statements and supporting
schedules of the properties or entities acquired by the Trust
which are included or incorporated by reference in the
Registration Statement and the Prospectus and covered by their
opinions therein, comply as to form in all material respects with
the applicable accounting requirements of the 1933 Act, the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations and
(iii) with respect to any pro forma financial statements and any
supporting schedules for properties or entities acquired by the
Trust which are included or incorporated by reference in the
Registration Statement and the Prospectus, they have read such
pro forma financial statements, have performed an audit or review
in accordance with SAS 71 of the historical financial statements
of the properties or entities acquired, have made appropriate
inquiries about the basis for the pro forma adjustments and
whether such pro forma financial statements comply as to form in
all material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X and have proved the arithmetic
accuracy of the application of the pro forma adjustments to the
historical amounts in such pro forma adjustments, and on the
basis of such review, inquiries and procedures, nothing came to
their attention that caused them to believe that such pro forma
financial statements do not comply as to form in all material
respects with the applicable requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of
such pro forma financial statements.
(e) Other Documents. On the date hereof and on each
Settlement Date, counsel to the Agents shall have been furnished
with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Trust in connection with the issuance
and sale of Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agree-
ment may be terminated by the applicable Agent or Agents by
notice to the Trust at any time and any such termination shall be
without liability of any party to any other party, except that
the covenant regarding provision of an earnings statement set
forth in Section 4(h) hereof, the provisions concerning payment
of expenses under Section 9 hereof, the indemnity and
contribution agreement set forth in Section 8 hereof, the
provisions concerning the representations, warranties and
agreements to survive delivery set forth in Section 10 hereof,
the termination provisions set forth in Section 11 hereof, the
provisions relating to governing law and forum set forth in
Section 13 and the provisions relating to parties set forth in
Section 14 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through an
Agent as Agent.
Delivery of Notes sold through an Agent as agent shall be
made by the Trust to such Agent for the account of any purchaser
only against payment therefor in immediately available funds. In
the event that a purchaser acting through an Agent shall fail
either to accept delivery of or to make payment for a Note on the
date fixed for settlement, the applicable Agent shall promptly
notify the Trust and deliver such Note to the Trust and, if such
Agent has theretofore paid the Trust for such Note, the Trust
will promptly return such funds (without interest) to such Agent.
SECTION 7. Additional Covenants of the Trust.
The Trust covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by the Trust of an offer for the purchase of Notes
(whether to one or more Agents as principal or through an Agent
as agent), and each delivery of Notes (whether to one or more
Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warran-
ties of the Trust contained in this Agreement and in any
certificate theretofore delivered to the Agents pursuant hereto
are true and correct at the time of such acceptance or sale, as
the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to
such Agent or Agents or to the purchaser or its agent, as the
case may be, of the Note or Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such
time (and it is understood that such representations and
warranties shall relate to the Registration Statement and
Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that
(i) the Registration Statement or the Prospectus shall be amended
or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rate or formula
applicable to the Notes or relating solely to the issuance and/or
offering of securities other than the Notes), (ii) there is filed
with the SEC any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating
solely to the issuance and/or offering of securities other than
the Notes), (iii) (if required in connection with the purchase of
Notes from the Trust by one or more Agents as principal) the
Trust sells Notes to such Agent or Agents as principal or (iv)
the Trust sells Notes in a form not previously certified to the
Agents by the Trust, the Trust shall furnish or cause to be
furnished to the Agent(s), forthwith a certificate dated the date
of filing with the SEC of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as
the case may be, in form and substance reasonably satisfactory to
the Agent(s) to the effect that the statements contained in the
certificate referred to in Section 5(b) hereof which were last
furnished to the Agents are true and correct at the time of such
amendment, supplement, filing or sale, as the case may be, as
though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu
of such certificate, a certificate of the same tenor as the
certificate referred to in Section 5(b) hereof, modified as
necessary to relate to the Registration Statement and the Pro-
spectus as amended and supplemented to the time of delivery of
such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that
(i) the Registration Statement or the Prospectus shall be amended
or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rate or formula
applicable to the Notes, providing solely for the inclusion of
additional financial information, or relating solely to the
issuance and/or offering of securities other than the Notes),
(ii) there is filed with the SEC any document incorporated by
reference into the Prospectus (other than any Current Report on
Form 8-K relating solely to the issuance and/or offering of
securities other than the Notes), (iii) (if required in
connection with the purchase of Notes from the Trust by one or
more Agents as principal) the Trust sells Notes to such Agent or
Agents as principal or (iv) the Trust sells Notes in a form not
previously certified to the Agents by the Trust, the Trust shall
furnish or cause to be furnished forthwith to the Agent(s) and to
counsel to the Agents the written opinions of Robinson Silverman
Pearce Aronsohn & Berman LLP, Ballard Spahr Andrews & Ingersoll,
or other counsel satisfactory to the Agent(s), dated the date of
filing with the SEC of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the
case may be, in form and substance reasonably satisfactory to the
Agent(s), of the same tenor as the opinions referred to in
Sections 5(a)(1) and 5(a)(2), as the case may be, hereof, but
modified, as necessary, to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of
delivery of such opinion or, in lieu of such opinion, counsel
last furnishing such opinion to the Agents shall furnish the
Agent(s) with a letter substantially to the effect that the
Agent(s) may rely on such last opinion to the same extent as
though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter
authorizing reliance); provided that with respect to the opinion
set forth in Section 5(a)(1)(xiii), if such opinion is being
rendered pursuant to clause (iii) or (iv) above, such counsel may
not rely on the assumptions set forth therein with respect to the
Notes being sold on the date of such opinion, but with respect to
the matters to which such assumptions apply in
Section 5(a)(1)(xiii), such counsel may qualify such opinion to
its knowledge based upon an officer's certificate delivered to
such counsel; provided, however, that, with respect to (i) and
(ii) above, in the event that the conditions of Section 4(k)(i)
hereof have been satisfied and the Trust has notified the Agents
in writing that offerings of Notes are suspended, then the Trust
shall be required to furnish or cause to be furnished such
opinions or such letter, as the case may be, only immediately
upon notification by the Trust that offerings of Notes may be
resumed.
(d) Subsequent Delivery of Comfort Letters. Each time that
(i) the Registration Statement or the Prospectus shall be amended
or supplemented to include additional financial information
(other than by an amendment or supplement relating solely to the
issuance and/or offering of securities other than the Notes),
(ii) there is filed with the SEC any document incorporated by
reference into the Prospectus which contains additional financial
information, or (iii) (if required in connection with the
purchase of Notes from the Trust by one or more Agents as
principal) the Trust sells Notes to such Agent or Agents as
principal, the Trust shall cause Ernst & Young LLP forthwith to
furnish to the Agent(s) a letter, dated the date of such filing
with the SEC of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the
case may be, in form and substance reasonably satisfactory to the
Agent(s), of the same tenor as the portions of the letter
referred to in clauses (i) and (ii) of Section 5(c) hereof but
modified to relate to the Registration Statement and Prospectus
as amended and supplemented to the date of such letter, and of
the same general tenor as the portions of the letter referred to
in clauses (iii) and (iv) of said Section 5(c) with such changes
as may be necessary to reflect changes in the financial state-
ments and other information derived from the accounting records
of the Trust; provided, however, that with respect to (i) and
(ii) above, in the event that the conditions of Section 4(k)(i)
hereof have been satisfied and the Trust has notified the Agents
in writing that offerings of Notes are suspended, then the Trust
shall be required to furnish or cause to be furnished such letter
only prior to the date that offerings of Notes may be resumed.
In addition, each time that the Registration Statement or the
Prospectus shall be amended or supplemented to include financial
statements and any supporting schedules thereto of properties or
entities acquired by the Trust, the Trust shall cause the
applicable accountants covering such financial statements and
supporting schedules to furnish to the Agents a letter, dated the
date of such amendment or supplement with the SEC, in form
satisfactory to the Agents, of the same tenor as the letter
referred to in Section 5(d) hereof; provided, however, that in
the event that the conditions of Section 4(k)(i) hereof have been
satisfied and the Trust has notified the Agents in writing that
offerings of Notes are suspended, then the Trust shall be
required to furnish or cause to be furnished such letter only
immediately upon notification by the Trust that offerings of
Notes may be resumed.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Trust agrees to
indemnify and hold harmless each Agent and each person, if any,
who controls such Agent within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, from and against
any and all losses, claims, damages and liabilities (including
without limitation the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue state-
ment of a material fact contained in the Registration Statement
or any amendment thereof or the Prospectus (as amended or sup-
plemented) or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein, in the case of the
Prospectus, in light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Agent
furnished to the Trust in writing by such Agent expressly for use
therein.
(b) Indemnification of the Trust. Each Agent agrees, sever-
ally and not jointly, to indemnify and hold harmless the Trust,
its trustees, its officers who sign the Registration Statement
and each person who controls the Trust within the meaning of Sec-
tion 15 of the 1933 Act and Section 20 of the 1934 Act, to the
same extent as the foregoing indemnity from the Trust to each
Agent, but only with reference to information relating to such
Agent furnished to the Trust in writing by such Agent expressly
for use in the Registration Statement, the Prospectus, or any
amendment or supplement thereto.
(c) General. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand
shall be brought or asserted against any person in respect of
which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person")
shall promptly notify the person against whom such indemnity may
be sought (the "Indemnifying Person") in writing, and the
Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified
Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall
pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indem-
nified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary,
(ii) the Indemnifying Person has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (in-
cluding any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. If, pursuant to
the preceding sentence, the Indemnifying Person is required to
pay the fees and expenses of counsel retained by the Indemnified
Person, the Indemnifying Person will not be required to retain
counsel for the Indemnified person pursuant to the first sentence
of this paragraph. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such
separate firm for the Agents and such control persons of the
Agents shall be designated in writing by J.P. Morgan Securities
Inc. or, if J.P. Morgan Securities Inc. is not an Indemnified
Person by the Agents that are Indemnified Persons and any such
separate firm for the Trust, its trustees, its officers who sign
the Registration Statement and such control persons of the Trust
shall be designated in writing by the Trust. The Indemnifying
Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the second sentence of
this paragraph, the Indemnifying Person agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than
30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not
have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. If by reason of
the provisions of this Section 8, an Indemnifying Person shall
have made any payment to an Indemnified Person and it is
ultimately determined that an Indemnified Person was not entitled
to indemnification hereunder, such person shall be responsible
for repaying or reimbursing such amounts to the Indemnifying
Person. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemni-
fied Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless
such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in
paragraphs (a) or (b) this Section 8 is unavailable to an
Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to herein in connection
with any offering of Notes, then each Indemnifying Person under
such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Trust on the one
hand and each Agent on the other hand from the offering of the
Notes or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appro-
priate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Trust on the
one hand and each Agent on the other hand in connection with the
statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Trust on
the one hand and each Agent on the other in connection with the
offering of such Notes shall be deemed to be in the same respec-
tive proportion as the net proceeds from the offering of such
Notes (before deducting expenses) received by the Trust and the
total discounts and commissions received by each Agent in respect
thereof bear to the aggregate offering price of such Notes. The
relative fault of the Trust on the one hand and of each Agent on
the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Trust on the
one hand or by such Agent on the other and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Trust and each Agent agrees that it would not be just
and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if all Agents were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable
considerations referred to above in this subsection (d). The
amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, in no event
shall an Agent be required to contribute any amount in excess of
the amount by which the total price at which the Notes referred
to in Section 8(d) that were sold by or through such Agent
exceeds the amount of any damages that such Agent has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
The obligation of each Agent to contribute pursuant to this
subsection (d) is several (in the proportion that the principal
amount of the Notes the sale of which by or through such Agent
gave rise to such losses, claims, damages or liabilities bears to
the aggregate principal amount of the Notes the sale of which by
or through any Agent gave rise to such losses, claims, damages or
liabilities) and is not joint.
(e) Not Exclusive. The indemnity and contribution agree-
ments contained in this Section 8 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
SECTION 9. Payment of Expenses.
The Trust will pay all expenses incident to the performance
of its obligations under this Agreement, whether or not any sale
of the Notes is consummated, including, without limiting the
generality of the foregoing:
(a) The preparation and filing of the Registration State-
ment and all amendments thereto and the Prospectus and any
amendments or supplements thereto;
(b) The preparation, filing, reproduction and delivery of
this Agreement, any Blue Sky Surveys and any Legal Investment
Surveys;
(c) The preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the
eligibility and issuance of Notes in book-entry form;
(d) The fees and disbursements of the Trust's accountants
and counsel, of the Trustee and its counsel, and of any
calculation agent or exchange rate agent;
(e) The reasonable fees and disbursements of counsel to the
Agents incurred in connection with the establishment of the
program relating to the Notes and incurred from time to time in
connection with the transactions contemplated hereby;
(f) The qualification of the Notes under state securities
laws in accordance with the provisions of Section 4(i) hereof,
including filing fees and the reasonable fees and disbursements
of counsel for the Agents in connection therewith and in connec-
tion with the preparation of any Blue Sky Survey;
(g) The printing and delivery to the Agents in quantities
as hereinabove stated of copies of the Registration Statement and
any amendments thereto, and of the Prospectus and any amendments
or supplements thereto, and the delivery by the Agents of the
Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the
Notes;
(h) The preparation, reproduction and delivery to the
Agents of copies of the Indenture and all amendments, supplements
and modifications thereto;
(i) Any fees charged by nationally recognized statistical
rating organizations for the rating of the Notes;
(j) The fees and expenses incurred in connection with any
listing of Notes on a securities exchange;
(k) The fees and expenses incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
and
(l) The cost of providing any CUSIP or other identification
numbers for the Notes.
SECTION 10. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Trust
submitted pursuant hereto shall remain operative and in full
force and effect, regardless of any investigation made by or on
behalf of the Agents or any controlling person of an Agent, or by
or on behalf of the Trust, and shall survive each delivery of and
payment for any of the Notes.
SECTION 11. Termination.
(a) Termination of this Agreement. This Agreement (exclud-
ing any agreement by one or more Agents to purchase Notes from
the Trust as principal) may be terminated for any reason, at any
time by either the Trust or an Agent, as to itself, upon the
giving of 7 days' written notice of such termination to the other
party hereto.
(b) Termination of Agreement to Purchase Notes as
Principal. The applicable Agent or Agents may terminate any
agreement by such Agent or Agents to purchase Notes from the
Trust as principal, immediately upon notice to the Trust, at any
time prior to the Settlement Date relating thereto, if (i) there
has been, since the date of such agreement or since the
respective dates as of which information is given in the
Prospectus, any material adverse change in the condition,
financial or otherwise, earnings, business affairs, prospects,
properties, shareholders' equity or results of operations of the
Trust and the Subsidiaries, considered as a whole, whether or not
arising in the ordinary course of business, or (ii) there shall
have occurred, since the date of such agreement, any outbreak or
escalation of hostilities or any change in financial markets or
other national or international calamity or crisis that, in the
judgment of such Agent or Agents, is material and adverse and
which in the judgment of such Agent or Agents makes it
impracticable to market the Notes on the terms and in the manner
contemplated in the Prospectus as amended or supplemented at the
time of solicitation or at the time such offer to purchase was
made, or (iii) since the date of such agreement, trading
generally shall have been suspended or materially limited on or
by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, or (iv) since
the date of such agreement or since the respective dates as of
which information is given in the Prospectus, trading of any
securities of or guaranteed by the Trust shall have been
suspended on any exchange or in any over-the-counter market, or
(v) since the date of such agreement, a general banking morato-
rium shall have been declared by either Federal, New York or
Maryland authorities or if a banking moratorium shall have been
declared by the relevant authorities in the country or countries
of origin of any foreign currency or currencies in which the
Notes are denominated or payable, or (vi) since the date of such
agreement or since the respective dates as of which information
is given in the Prospectus, there shall have occurred any
downgrading or withdrawal, or any notice shall have been given of
(A) any intended or potential downgrading or (B) any review or
surveillance, with possible negative implications, in the rating
accorded any securities of or guaranteed by the Trust by any
"nationally recognized statistical rating organization", as that
term is defined by the SEC for purposes of Rule 436(g)(2) under
the Securities Act; or (vii) there shall have come to the
attention of such Agent or Agents any facts that would cause them
to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of Notes, included an untrue statement
of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circum-
stances existing at the time of such delivery, not misleading.
As used in this Section 12(b), the term "Prospectus" means the
Prospectus in the form first provided to the applicable Agent or
Agents for use in confirming sales of the related Notes.
(c) General. In the event of any such termination, neither
party will have any liability to the other party hereto, except
that (i) the Agents shall be entitled to any commission earned as
a result of a sale of a Note by the Trust, (ii) if at the time of
termination (a) any Agent shall own any Notes purchased by it as
principal with the intention of reselling them or (b) an offer to
purchase any of the Notes has been accepted by the Trust but the
time of delivery to the purchaser or his agent of the Note or
Notes relating thereto has not occurred, the covenants set forth
in Sections 4 and 7 hereof shall remain in effect until such
Notes are so resold or delivered, as the case may be, and (iii)
the covenant set forth in Section 4(h) hereof, the provisions of
Section 9 hereof, the indemnity and contribution agreements set
forth in Section 8 hereof, and the provisions of Sections 10, 13
and 14 hereof shall remain in effect.
SECTION 12. Notices.
Unless otherwise provided herein, all notices required under
the terms and provisions hereof shall be in writing, either
delivered by hand, by mail or by telex, telecopier or telegram,
and any such notice shall be effective when received at the
address specified below.
If to the Trust:
Wellsford Residential Property Trust
610 Fifth Avenue, 7th Floor
New York, New York 10020
Attention: President
Telephone No.: (212) 333-2300
Telecopy No.: (212) 333-2323
with a copy to:
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
Attention: Alan S. Pearce
Telephone No.: (212) 541-2000
Telecopy No.: (212) 541-4630
If to the Agents:
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Attention: Medium-Term Note Desk
Telephone No.: (212) 648-0591
Telecopy No.: (212) 648-5907
First Chicago Capital Markets, Inc.
One First National Plaza
Suite 0595
Chicago, Illinois 60670-0595
Attention: Structuring Group
Telephone No.: (312) 732-8270
Telecopy No.: (312) 732-4172
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Credit Control-Medium Term Notes
Telephone No.: (212) 907-3711
Telecopy No.: (212) 357-8680
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telephone No.: (212) 449-7476
Telecopy No.: (212) 449-2234
Smith Barney Inc.
390 Greenwich Street, 4th Floor
New York, New York 10013
Attention: MTN Product Management/Origination
Telephone No.: (212) 723-5123
Telecopy No.: (212) 723-8854
Smith Barney Inc.
Brooklyn Army Terminal
140 58th Street - 8th Floor
Brooklyn, New York 11220
Attention: Prospectus Fulfillment - Andrea Springer
Telephone No.: (718) 921-8460
Telecopy No.: (718) 921-8472
or at such other address as such party may designate from time to
time by notice duly given in accordance with the terms of this
Section 13.
SECTION 13. Governing Law; Forum.
This Agreement and all the rights and obligations of the
parties shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and
to be performed in such State. Any suit, action or proceeding
brought by either party in connection with or arising under this
Agreement shall be brought solely in the state or federal court
of appropriate jurisdiction located in the Borough of Manhattan,
The City of New York.
SECTION 14. Parties.
This Agreement shall inure to the benefit of and be binding
upon the Agents and the Trust and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the
controlling persons and officers and trustees referred to in
Section 8 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto and respective
successors and said controlling persons and officers and trustees
and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes
shall be deemed to be a successor by reason merely of such
purchase.
SECTION 15. No Liability of Shareholders, Trustees or
Officers.
This Agreement and all documents, agreements, understandings
and arrangements relating to any transaction contemplated hereby
or thereby have been executed or entered into by an officer of
the Trust in his/her capacity as an officer of the Trust which
has been formed as a Maryland real estate investment trust
pursuant to the Declaration of Trust, and not individually, and
neither the trustees, officers or shareholders of the Trust shall
be bound or have any personal liability hereunder or thereunder.
Each party hereto shall look solely to the assets of the Trust
for satisfaction of any liability of the Trust in respect of this
Agreement and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or
thereby and will not seek recourse or commence any action against
any of the trustees, officers or shareholders of the Trust or any
of their personal assets for the performance or payment of any
obligation hereunder or thereunder. The foregoing shall also
apply to any future documents, agreements, understandings,
arrangements and transactions between the parties hereto.
SECTION 16. Counterparts.
This Agreement may be executed in one or more counterparts
and, if executed in more than one counterpart, the executed
counterparts hereof shall constitute a single instrument.
If the foregoing is in accordance with the Agents' under-
standing of our agreement, please sign and return to the Trust a
counterpart hereof, whereupon this instrument along with all
counterparts will become a binding agreement between the Agents
and the Trust in accordance with its terms.
<PAGE>
SECTION 17. Amendments.
This Agreement may not be amended or supplemented unless
such amendment or supplement is in writing and is signed by the
Trust and each Agent or is solely to enable the Trust to carry
out its rights under and in accordance with Section 1(a) hereof.
Very truly yours,
WELLSFORD RESIDENTIAL PROPERTY TRUST
By:/s/ Jeffrey Lynford
________________________________
Name: Jeffrey Lynford
Title: Chairman of the Board
Confirmed and Accepted, as of the date
first above written:
J.P. MORGAN SECURITIES INC.
By:/s/ Keysha Bailey
__________________________________
Name: Keysha Bailey
Title: Vice President
FIRST CHICAGO CAPITAL MARKETS, INC.
By:/s/ Evonne W. Taylor
_________________________________
Name: Evonne W. Taylor
Title: Vice President
GOLDMAN, SACHS & CO.
/s/ Goldman, Sachs & Co.
____________________________________
(Goldman, Sachs & Co.)
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott G. Primrose
___________________________________
Name: Scott G. Primrose
Title: Authorized Signatory
SMITH BARNEY INC.
By: /s/ Robert R. Holloman
_____________________________________
Name: Robert R. Holloman
Title: Managing Director
EXHIBIT A
The following terms, if applicable, shall be agreed to by
one or more Agents and the Trust in connection with each sale of
Notes:
Principal Amount: $_______
(or principal amount of foreign currency or composite
currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Default Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
__ LIBOR Reuters
Page:
__ LIBOR Telerate
Page:
Index Currency:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Default Rate:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
If Repayable:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from
___________
Price to Public: ___%, plus accrued interest, if any, from
___________
Closing Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Trust by
one or more Agents as principal, agreement as to whether the
following will be required:
Officers' Certificate pursuant to Section 7(b) of the
Distribution Agreement.
Legal Opinions pursuant to Section 7(c) of the Distribution
Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement.
<PAGE>
SCHEDULE A
As compensation for the services of the Agents hereunder,
the Trust shall pay the applicable Agent, on a discount basis, a
commission for the sale of each Note equal to the principal
amount of such Note multiplied by the appropriate percentage set
forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to less than 1 year. . . . . .125%
From 1 year to less than 18 months . . . . .150
From 18 months to less than 2 years. . . . .200
From 2 years to less than 3 years. . . . . .250
From 3 years to less than 4 years. . . . . .350
From 4 years to less than 5 years. . . . . .450
From 5 years to less than 6 years. . . . . .500
From 6 years to less than 7 years. . . . . .550
From 7 years to less than 10 years . . . . .600
From 10 years to less than 15 years. . . . .625
From 15 years to less than 20 years. . . . .700
From 20 years to 30 years. . . . . . . . . .750
Greater than 30 years. . . . . . . . . . . . . . . . . .
<PAGE>
Annex 2(a)(ii)
Significant Subsidiaries
Wellsford Holly Residential Properties, Inc.
Holly Property Holdings, Inc.
<PAGE>
Annex 2(a)(iii)
Joint Venture
Roy Street Associates
<PAGE>
Annex 5(a)(1)(xiii)
Agreements
1. Second Amended and Restated Revolving Credit Agreement,
dated June 30, 1995, among Wellsford Residential Property
Trust and The First National Bank of Boston, the Other Banks
which are a Party to the Agreements and Other Banks which
may become Parties to the Agreement and The First National
Bank of Boston, as Agent, as amended by First Amendment,
dated as of December 1, 1995.
Section 8.1 (i) and (j). Restrictions on Indebtedness
Section 8.12. Additional Restrictions on Liens on
Real Estate and Indebtedness
Section 9.1. Liabilities to Assets Ratio
Section 9.2. Consolidated Operating Cash Flow
Coverage
2. Letter of Credit Reimbursement Agreement among Palomino Park
Public Improvements Corporation and Wellsford Residential
Property Trust and Dresdner Bank AG, New York Branch, dated
as of December 1, 1995, relating to Palomino Park Public
Improvements Corp. Assessment Lien Revenue Bonds Series
1995 - $14,755,000.
Section 6.3 (h) and (i). Restrictions on Indebtedness
Section 6.14. Additional Restrictions on Wellsford
REIT Liens on Real Estate and
Indebtedness
Section 6.17. Financial Covenants of Wellsford REIT
3. Indenture, dated as of January 30, 1995, between Wellsford
Residential Property Trust and The First National Bank of
Boston.
Section 1004. Limitations on Incurrence of Debt
4. Indenture, dated as of August 21, 1995, between Wellsford
Residential Property Trust and United States Trust Company
of New York.
Section 1004. Limitations on Incurrence of Debt
5. Indenture, dated as of October 25, 1996, between Wellsford
Residential Property Trust and United States Trust Company
of New York.
Section 1004. Limitations on Incurrence of Debt
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET,
NEW YORK, NEW YORK) TO THE ISSUER HEREOF OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.1
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF
THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.2
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. FXR-____ _________________________________
WELLSFORD RESIDENTIAL PROPERTY TRUST
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
INTEREST PAYMENT DATE(S) DEFAULT RATE: %
[ ] _______ and ______
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
OPTIONAL REPAYMENT [ ] CHECK IF AN ORIGINAL
DATE(S): ISSUE DISCOUNT NOTE
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION: EXCHANGE RATE
[ ] United States dollars [ ] $1,000 and integral AGENT:
[ ] Other: multiples thereof
[ ] Other:
EXCHANGE RATE: AMORTIZING SECURITY: AMORTIZATION
U.S. $1.00 = _______ [ ] Yes FORMULA:
[ ] No
AMORTIZATION PAYMENT ADDENDUM ATTACHED OTHER/ADDITIONAL
DATE(S): [ ] Yes PROVISIONS:
[ ] No
1 This paragraph applies to global Notes only.
2 This paragraph applies to global Notes only.
<PAGE>
Wellsford Residential Property Trust, a Maryland real estate
investment trust (the "Trust", which term includes any successor
entity under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ________________________, or
registered assigns, the principal sum of __________________, on
the Stated Maturity Date specified above (or any Redemption Date
or Repayment Date, each as defined on the reverse hereof) (each
such Stated Maturity Date, Redemption Date or Repayment Date
being hereinafter referred to as the "Maturity Date" with respect
to the principal repayable on such date) and to pay interest
thereon, at the Interest Rate per annum specified above, until
the principal hereof is paid or duly made available for payment,
and (to the extent that the payment of such interest shall be
legally enforceable) at the Default Rate per annum specified
above on any overdue principal, premium and/or interest,
including any overdue sinking fund or redemption payment. The
Trust will pay interest in arrears on each Interest Payment Date,
if any, specified above (each, an "Interest Payment Date"),
commencing with the first Interest Payment Date next succeeding
the Original Issue Date specified above, and on the Maturity
Date; provided, however, that if the Original Issue Date occurs
between a Record Date (as defined below) and the next succeeding
Interest Payment Date, interest payments will commence on the
second Interest Payment Date next succeeding the Original Issue
Date to the holder of this Note on the Record Date with respect
to such second Interest Payment Date. Interest on this Note will
be computed on the basis of a 360-day year of twelve 30-day
months.
Interest on this Note will accrue from, and including, the
immediately preceding Interest Payment Date to which interest has
been paid or duly provided for (or from, and including, the
Original Issue Date if no interest has been paid or duly provided
for) to, but excluding, the applicable Interest Payment Date or
the Maturity Date, as the case may be (each, an "Interest
Period"). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to
certain exceptions described herein, be paid to the person in
whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day
(whether or not a Business Day, as defined below) immediately
preceding such Interest Payment Date (the "Record Date"); pro-
vided, however, that interest payable on the Maturity Date will
be payable to the person to whom the principal hereof and
premium, if any, hereon shall be payable. Any such interest not
so punctually paid or duly provided for ("Defaulted Interest")
will forthwith cease to be payable to the holder on any Record
Date, and shall be paid to the person in whose name this Note is
registered at the close of business on a special record date (the
"Special Record Date") for the payment of such Defaulted Interest
to be fixed by the Trustee hereinafter referred to, notice
whereof shall be given to the holder of this Note by the Trustee
not more than 15 days and not less than 10 days prior to such
Special Record Date or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which this Note may be listed, and upon
such notice as may be required by such exchange, all as more
fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in
respect of this Note due on the Maturity Date or any prior date
on which the principal or an installment of principal of this
Note becomes due and payable, whether by the declaration of
acceleration or otherwise, will be made in immediately available
funds upon presentation and surrender of this Note (and, with
respect to any applicable repayment of this Note, upon
presentation and surrender of this Note and a duly completed
election form as contemplated on the reverse hereof) at the
office or agency maintained by the Trust for that purpose in the
Borough of Manhattan, The City of New York, currently the office
of the Trustee located at 114 West 47th Street, New York, New
York 10036, or at such other paying agency in the Borough of
Manhattan, The City of New York, as the Trust may determine;
provided, however, that if the Specified Currency specified above
is other than United States dollars and such payment is to be
made in the Specified Currency in accordance with the provisions
set forth below, such payment will be made by wire transfer of
immediately available funds to an account with a bank designated
by the holder hereof at least 15 calendar days prior to the
Maturity Date, provided that such bank has appropriate facilities
therefor and that this Note (and, if applicable, a duly completed
repayment election form) is presented and surrendered at the
aforementioned office or agency maintained by the Trust in time
for the Trustee to make such payment in such funds in accordance
with its normal procedures. Payment of interest due on any
Interest Payment Date other than the Maturity Date will be made
at the aforementioned office or agency maintained by the Trust
or, at the option of the Trust, by check mailed to the address of
the person entitled thereto as such address shall appear in the
Security Register maintained by the Trustee; provided, however,
that a holder of U.S.$10,000,000 (or, if the Specified Currency
is other than United States dollars, the equivalent thereof in
the Specified Currency) or more in aggregate principal amount of
Notes (whether having identical or different terms and
provisions) will be entitled to receive interest payments on any
Interest Payment Date other than the Maturity Date by wire
transfer of immediately available funds if appropriate wire
transfer instructions have been received in writing by the
Trustee not less than 15 calendar days prior to such Interest
Payment Date. Any such wire transfer instructions received by
the Trustee shall remain in effect until revoked by such holder.
If any Interest Payment Date or the Maturity Date falls on a
day that is not a Business Day, the required payment of
principal, premium, if any, and/or interest shall be made on the
next succeeding Business Day with the same force and effect as if
made on the date such payment was due, and no interest shall
accrue with respect to such payment for the period from and after
such Interest Payment Date or the Maturity Date, as the case may
be, to the date of such payment on the next succeeding Business
Day.
As used herein, "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on
which banking institutions are authorized or required by law,
regulation or executive order to close in The City of New York;
provided, however, that if the Specified Currency is other than
United States dollars, such day is also not a day on which
banking institutions are authorized or required by law,
regulation or executive order to close in the Principal Financial
Center (as defined below) of the country issuing the Specified
Currency (or, if the Specified Currency is European Currency
Units ("ECU"), such day is not a day that appears as an ECU non-
settlement day on the display designated as "ISDE" on the Reuter
Monitor Money Rates Service (or a day so designated by the ECU
Banking Association) or, if ECU non-settlement days do not appear
on that page (and are not so designated), is not a day on which
payments in ECU cannot be settled in the international interbank
market). Principal Financial Center means the capital city of
the country issuing the Specified Currency, except that with
respect to United States dollars, Australian dollars, Deutsche
marks, Dutch guilders, Italian lire, Swiss francs and ECU, the
Principal Financial Center shall be The City of New York, Sydney,
Frankfurt, Amsterdam, Milan, Zurich and Luxembourg, respectively.
The Trust is obligated to make payments of principal,
premium, if any, and interest in respect of this Note in the
Specified Currency (or, if the Specified Currency is not at the
time of such payment legal tender for the payment of public and
private debts, in such other coin or currency of the country
which issued the Specified Currency as at the time of such
payment is legal tender for the payment of such debts). If the
Specified Currency is other than United States dollars, except as
provided below, any such amounts so payable by the Trust will be
converted by the Exchange Rate Agent specified above into United
States dollars for payment to the holder of this Note.
If the Specified Currency is other than United States
dollars, the holder of this Note may elect to receive such
amounts in such Specified Currency. If the holder of this Note
shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any,
and/or interest in respect of this Note in the Specified
Currency, any United States dollar amount to be received by the
holder of this Note will be based on the highest bid quotation in
The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second
Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the
Exchange Rate Agent) selected by the Exchange Rate Agent and
approved by the Trust for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement
on such payment date in the aggregate amount of such Specified
Currency payable to all holders of Foreign Currency Notes
scheduled to receive United States dollar payments and at which
the applicable dealer commits to execute a contract. All
currency exchange costs will be borne by the holder of this Note
by deductions from such payments. If three such bid quotations
are not available, payments on this Note will be made in the
Specified Currency.
If the Specified Currency is other than United States
dollars, the holder of this Note may elect to receive all or a
specified portion of any payment of principal, premium, if any,
and/or interest in respect of this Note in the Specified Currency
by submitting a written request for such payment to the Trustee
at its corporate trust office in The City of New York on or prior
to the applicable Record Date or at least 15 calendar days prior
to the Maturity Date, as the case may be. Such written request
may be mailed or hand delivered or sent by cable, telex or other
form of facsimile transmission. The holder of this Note may
elect to receive all or a specified portion of all future
payments in the Specified Currency in respect of such principal,
premium, if any, and/or interest and need not file a separate
election for each payment. Such election will remain in effect
until revoked by written notice to the Trustee, but written
notice of any such revocation must be received by the Trustee on
or prior to the applicable Record Date or at least 15 calendar
days prior to the Maturity Date, as the case may be.
If the Specified Currency is other than United States
dollars or a composite currency and the holder of this Note shall
have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in
respect of this Note in the Specified Currency and if the
Specified Currency is not available due to the imposition of
exchange controls or other circumstances beyond the reasonable
control of the Trust, the Trust will be entitled to satisfy its
obligations to the holder of this Note by making such payment in
United States dollars on the basis of the Market Exchange Rate
(as defined below) on the second Business Day prior to such
payment date or, if such Market Exchange Rate is not then
available, on the basis of the most recently available Market
Exchange Rate or as otherwise specified on the face hereof. The
"Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers
for such Specified Currency as certified for customs purposes by
(or if not so certified, as otherwise determined by) the Federal
Reserve Bank of New York. Any payment made under such
circumstances in United States dollars will not constitute an
Event of Default (as defined in the Indenture) with respect to
this Note.
If the Specified Currency is a composite currency and the
holder of this Note shall have duly made an election to receive
all or a specified portion of any payment of principal, premium,
if any, and/or interest in respect of this Note in the Specified
Currency and if such composite currency is unavailable due to the
imposition of exchange controls or other circumstances beyond the
reasonable control of the Trust, then the Trust will be entitled
to satisfy its obligations to the holder of this Note by making
such payment in United States dollars. The amount of each
payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the
composite currency in United States dollars. The component
currencies of the composite currency for this purpose
(collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of
the composite currency as of the last day on which the composite
currency was used. The equivalent of the composite currency in
United States dollars shall be calculated by aggregating the
United States dollar equivalents of the Component Currencies.
The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the
basis of the most recently available Market Exchange Rate for
each such Component Currency, or as otherwise specified on the
face hereof.
If the official unit of any Component Currency is altered by
way of combination or subdivision, the number of units of the
currency as a Component Currency shall be divided or multiplied
in the same proportion. If two or more Component Currencies are
consolidated into a single currency, the amounts of those
currencies as Component Currencies shall be replaced by an amount
in such single currency equal to the sum of the amounts of the
consolidated Component Currencies expressed in such single
currency. If any Component Currency is divided into two or more
currencies, the amount of the original Component Currency shall
be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original
Component Currency.
All determinations referred to above made by the Exchange
Rate Agent shall be at its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and
binding on the holder of this Note.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof and, if so specified above
on the face hereof, in the Addendum hereto, which further
provisions shall have the same force and effect as if set forth
on the face hereof.
Notwithstanding any provisions to the contrary contained
herein, if the face of this Note specifies that an Addendum is
attached hereto or that "Other/Additional Provisions" apply to
this Note, this Note shall be subject to the terms set forth in
such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been
executed by the Trustee or its Authenticating Agent by manual
signature, this Note shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, Wellsford Residential Property Trust has
caused this Note to be duly executed by one of its duly
authorized officers.
WELLSFORD RESIDENTIAL PROPERTY TRUST
By________________________________
Title:
[SEAL]
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By____________________________
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
WELLSFORD RESIDENTIAL PROPERTY TRUST
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Securities
(the "Securities") of the Trust issued and to be issued under an
Indenture, dated as of October 25, 1996, as amended, modified or
supplemented from time to time (the "Indenture"), between the
Trust and United States Trust Company of New York, as Trustee
(the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and
immunities thereunder of the Trust, the Trustee and the holders
of the Securities, and of the terms upon which the Securities
are, and are to be, authenticated and delivered. This Note is
one of the series of Securities designated as "Medium-Term Notes
Due Nine Months or More from Date of Issue" (the "Notes"). All
terms used but not defined in this Note or in an Addendum hereto
shall have the meanings assigned to such terms in the Indenture
or on the face hereof, as the case may be.
This Note is issuable only in registered form without
coupons in minimum denominations of U.S. $1,000 and integral
multiples thereof or the minimum Authorized Denomination
specified on the face hereof.
This Note will not be subject to any sinking fund and,
unless otherwise specified on the face hereof in accordance with
the provisions of the following two paragraphs, will not be
redeemable or repayable prior to the Stated Maturity Date.
This Note will be subject to redemption at the option of the
Trust on any date on and after the Initial Redemption Date, if
any, specified on the face hereof, in whole or from time to time
in part in increments of U.S. $1,000 or the minimum Authorized
Denomination (provided that any remaining principal amount hereof
shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed
for redemption (each, a "Redemption Date"), on notice given not
more than 60 nor less than 30 calendar days prior to the
Redemption Date and in accordance with the provisions of the
Indenture. The "Redemption Price" shall initially be the Initial
Redemption Percentage specified on the face hereof multiplied by
the unpaid principal amount of this Note to be redeemed. The
Initial Redemption Percentage shall decline at each anniversary
of the Initial Redemption Date by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof until
the Redemption Price is 100% of the unpaid principal amount to be
redeemed. In the event of redemption of this Note in part only,
a new Note of like tenor for the unredeemed portion hereof and
otherwise having the same terms as this Note shall be issued in
the name of the holder hereof upon the presentation and surrender
hereof.
This Note will be subject to repayment by the Trust at the
option of the holder hereof on the Optional Repayment Date(s), if
any, specified on the face hereof, in whole or in part in
increments of U.S.$1,000 or the minimum Authorized Denomination
(provided that any remaining principal amount hereof shall be at
least U.S.$1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to
be repaid, together with unpaid interest accrued thereon to the
date fixed for repayment (each, a "Repayment Date"). For this
Note to be repaid, the Trustee must receive at its office in the
Borough of Manhattan, The City of New York, referred to on the
face hereof, at least 30 days but not more than 60 days prior to
the Repayment Date (i) this Note and the form hereon entitled
"Option to Elect Repayment" duly completed or (ii) a telegram,
telex, facsimile transmission, or a letter from a member of a
national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in
the United States setting forth the name of the holder hereof,
the principal amount of this Note, the principal amount of this
Note to be repaid, the certificate number or a description of the
tenor and terms of this Note, a statement that the option to
elect repayment is being exercised thereby, and a guarantee that
this Note, together with the form hereon entitled "Option to
Elect Repayment" duly completed, will be received by the Trustee
not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter, provided that
such telegram, telex, facsimile transmission or letter shall only
be effective if this Note and duly completed form are received by
the Trustee by such fifth Business Day. Exercise of such
repayment option by the holder hereof will be irrevocable. In
the event of repayment of this Note in part only, a new Note of
like tenor for the unrepaid portion hereof and otherwise having
the same terms as this Note shall be issued in the name of the
holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified
on the face hereof, the amount payable to the holder of this Note
in the event of redemption, repayment or acceleration of maturity
of this Note will be equal to the sum of (i) the Issue Price
specified on the face hereof (increased by any accruals of the
Discount, as defined below) and, in the event of any redemption
of this Note (if applicable), multiplied by the Initial
Redemption Percentage (as adjusted by the Annual Redemption
Percentage Reduction, if applicable) and (ii) any unpaid interest
on this Note accrued from the Original Issue Date to the
Redemption Date, Repayment Date or date of acceleration of
maturity, as the case may be. The difference between the Issue
Price and 100% of the principal amount of this Note is referred
to herein as the "Discount."
For purposes of determining the amount of Discount that has
accrued as of any Redemption Date, Repayment Date or date of
acceleration of maturity of this Note, such Discount will be
accrued using a constant yield method. The constant yield will
be calculated using a 30-day month, 360-day year convention, a
compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a
compounding period), a coupon rate equal to the initial coupon
rate applicable to this Note and an assumption that the maturity
of this Note will not be accelerated. If the period from the
Original Issue Date to the initial Interest Payment Date (the
"Initial Period") is shorter than the compounding period for this
Note, a proportionate amount of the yield for an entire
compounding period will be accrued. If the Initial Period is
longer than the compounding period, then such period will be
divided into a regular compounding period and a short period,
with the short period being treated as provided in the preceding
sentence.
If an Event of Default, as defined in the Indenture, shall
occur and be continuing, the principal of the Notes may be
declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the
entire indebtedness of the Notes or (ii) certain covenants and
Events of Default with respect to the Notes, in each case upon
compliance with certain conditions set forth therein, which
provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Trust and the rights of the holders
of the Securities at any time by the Trust and the Trustee with
the consent of the holders of not less than a majority of the
aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains
provisions permitting the holders of not less than a majority of
the aggregate principal amount of the outstanding Securities of
any series, on behalf of the holders of all such Securities, to
waive compliance by the Trust with certain provisions of the
Indenture. Furthermore, provisions in the Indenture permit the
holders of not less than a majority of the aggregate principal
amount of the outstanding Securities of any series, in certain
instances, to waive, on behalf of all of the holders of
Securities of such series, certain past defaults under the
Indenture and their consequences. Any such consent or waiver by
the holder of this Note shall be conclusive and binding upon such
holder and upon all future holders of this Note and other Notes
issued upon the registration of transfer hereof or in exchange
heretofore or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the
obligation of the Trust, which is absolute and unconditional, to
pay principal, premium, if any, and interest in respect of this
Note at the times, places and rate or formula, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein and herein set forth, the transfer of this
Note is registrable in the Security Register of the Trust upon
surrender of this Note for registration of transfer at the office
or agency of the Trust in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form
satisfactory to the Trust and the Security Registrar, duly
executed by, the holder hereof or by his attorney duly authorized
in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain
limitations therein and herein set forth, this Note is
exchangeable for a like aggregate principal amount of Notes of
different authorized denominations but otherwise having the same
terms and conditions, as requested by the holder hereof
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Trust may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Trust, the Trustee and any agent of the Trust or
the Trustee may treat the holder in whose name this Note is
registered as the owner thereof for all purposes, whether or not
this Note be overdue, and neither the Trust, the Trustee nor any
such agent shall be affected by notice to the contrary.
This Note and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or
thereby have been executed or entered into by the undersigned in
his/her capacity as an officer or trustee of the Trust which has
been formed as a Maryland real estate investment trust pursuant
to the Declaration of Trust of the Trust, dated as of July 20,
1992, as amended, and not individually, and neither the trustees,
officers, employees or shareholders of the Trust shall be bound
or have any personal liability hereunder or thereunder. The
holder of this Note by accepting this Note waives and releases
all such liability. This waiver and release are part of the
consideration for the issue of this Note. Each party hereto
shall look solely to the assets of the Trust for satisfaction of
any liability of the Trust in respect of this Note and all
documents, agreements, understandings and arrangements relating
to any transaction contemplated hereby or thereby and will not
seek recourse or commence any action against any of the trustees,
officers or shareholders of the Trust or any of their personal
assets for the performance or payment of any obligation hereunder
or thereunder. The foregoing shall also apply to any future
documents, agreements, understandings, arrangements and
transactions between the parties hereto.
The Indenture and this Note shall be governed by and
construed in accordance with the laws of the State of New York.
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Note, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above
list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
|______________________________|___________________________________________
___________________________________________________________________________
______(Please print or typewrite name and address including postal zip code
of assignee)
___________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing
___________________________________________________________________________
Attorney to transfer this Note on the books of the Trustee, with full power
of substitution in the premises.
Dated:_____________________ ____________________________________
_____________________________________
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of
this Note in every particular,
without alteration or enlargement
or any change whatsoever.
<PAGE>
OPTION TO ELECT REPAYMENT
<PAGE>
The undersigned hereby irrevocably request(s) and instruct(s) the
Trust to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
___________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its
corporate trust office in the Borough of Manhattan, The City of New York,
currently located at 114 West 47th Street, New York, New York 10036, this
Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be increments of U.S.$1,000
(or, if the Specified Currency is other than United States dollars, the
minimum Authorized Denomination specified on the face hereof)) which the
holder elects to have repaid and specify the denomination or denominations
(which shall be an Authorized Denomination) of the Notes to be issued to
the holder for the portion of this Note not being repaid (in the absence of
any such specification, one such Note will be issued for the portion not
being repaid).
Principal Amount
to be Repaid: $____________ ___________________________
Notice: The signature(s) on this
Date: _____________________ Option to Elect Repayment must
correspond with the name(s) as
written upon the face of this
Note in every particular, without
alteration or enlargement or any
change whatsoever.
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW
YORK) TO THE ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.1
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF
SUCH SUCCESSOR DEPOSITARY.2<PAGE>
REGISTERED CUSIP No. PRINCIPAL AMOUNT:
No. FLR-____ _________________________________________
WELLSFORD RESIDENTIAL PROPERTY TRUST
MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
Page: If Telerate Page 7052:
[ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
[ ] LIBOR Telerate
Page:
INDEX CURRENCY:
INDEX MATURITY: INITIAL INTEREST RATE: % INTEREST PAYMENT DATE(S):
SPREAD (PLUS OR SPREAD MULTIPLIER: INITIAL INTEREST RESET DATE:
MINUS)
- -------------------
1 This paragraph applies to global Notes only.
2 This paragraph applies to global Notes only.
<PAGE>
MINIMUM INTEREST RATE: % MAXIMUM INTEREST RATE: % INTEREST RESET DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT CALCULATION AGENT:
DATE(S):
INTEREST CATEGORY: DATE COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: % from to
[ ] Original Issue Discount Note Applicable Interest Rate Basis:
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral multiples
[ ] Other: thereof
[ ] Other:
EXCHANGE RATE:
U.S. $1.00 = ______
EXCHANGE RATE AGENT:
AMORITIZING SECURITY:
[ ] Yes
[ ] No
AMORTIZATION FORMULA:
AMORTIZATION PAYMENT DATE(S):
DEFAULT RATE: %
ADDENDUM ATTACHED:
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
<PAGE>
Wellsford Residential Property Trust, a Maryland real estate
investment trust (the "Trust", which term includes any successor entity
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ___________________________, or registered assigns, the
principal sum of ___________________, on the Stated Maturity Date specified
above (or any Redemption Date or Repayment Date, each as defined below)
(each such Stated Maturity Date, Redemption Date or Repayment Date being
hereinafter referred to as the "Maturity Date" with respect to the
principal repayable on such date) and to pay interest thereon, at a rate
per annum equal to the initial Interest Rate specified above until the
Initial Interest Reset Date specified above and thereafter at a rate
determined in accordance with the provisions specified above and on the
reverse hereof or in an Addendum hereto with respect to one or more
Interest Rate Bases specified above until the principal hereof is paid or
duly made available for payment, and (to the extent that the payment of
such interest shall be legally enforceable) at the Default Rate per annum
specified above on any overdue principal, premium and/or interest,
including any overdue sinking fund or redemption payment. The Trust will
pay interest in arrears on each Interest Payment Date, if any, specified
above (each, an "Interest Payment Date"), commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified
above, and on the Maturity Date; provided, however, that if the Original
Issue Date occurs between a Record Date (as defined below) and the next
succeeding Interest Payment Date, interest payments will commence on the
second Interest Payment Date next succeeding the Original Issue Date to the
holder of this Note on the Record Date with respect to such second Interest
Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly
provided for (or from, and including, the Original Issue Date if no
interest has been paid or duly provided for) to, but excluding, the
applicable Interest Payment Date or the Maturity Date, as the case may be
(each, an "Interest Period"). The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the person in whose name this Note
(or one or more predecessor Notes) is registered at the close of business
on the fifteenth calendar day (whether or not a Business Day, as defined on
the reverse hereof) immediately preceding such Interest Payment Date (the
"Record Date"); provided, however, that interest payable on the Maturity
Date will be payable to the person to whom the principal hereof and
premium, if any, hereon shall be payable. Any such interest not so
punctually paid or duly provided for ("Defaulted Interest") will forthwith
cease to be payable to the holder on any Record Date, and shall be paid to
the person in whose name this Note is registered at the close of business
on a special record date (the "Special Record Date") for the payment of
such Defaulted Interest to be fixed by the Trustee hereinafter referred to,
notice whereof shall be given to the holder of this Note by the Trustee not
more than 15 days and not less than 10 days prior to such Special Record
Date or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which this Note may be
listed, and upon such notice as may be required by such exchange, all as
more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date, or any prior date on which the principal or
an installment of principal of this Note becomes due and payable, whether
by the declaration of acceleration or otherwise, will be made in
immediately available funds upon presentation and surrender of this Note
(and, with respect to any applicable repayment of this Note, upon
presentation and surrender of this Note and a duly completed election form
as contemplated on the reverse hereof) at the office or agency maintained
by the Trust for that purpose in the Borough of Manhattan, The City of New
York, currently the office of the Trustee located at 114 West 47th Street,
New York, New York 10036, or at such other paying agency in the Borough of
Manhattan, The City of New York, as the Trust may determine; provided,
however, that if the Specified Currency specified above is other than
United States dollars and such payment is to be made in the Specified
Currency in accordance with the provisions set forth below, such payment
will be made by wire transfer of immediately available funds to an account
with a bank designated by the holder hereof at least 15 calendar days prior
to the Maturity Date, provided that such bank has appropriate facilities
therefor and that this Note (and, if applicable, a duly completed repayment
election form) is presented and surrendered at the aforementioned office or
agency maintained by the Trust in time for the Trustee to make such payment
in such funds in accordance with its normal procedures. Payment of
interest due on any Interest Payment Date other than the Maturity Date will
be made at the aforementioned office of agency maintained by the Trust or,
at the option of the Trust, by check mailed to the address of the person
entitled thereto as such address shall appear in the Security Register
maintained by the Trustee; provided, however, that a holder of U.S.
$10,000,000 (or, if the Specified Currency is other than United States
dollars, the equivalent thereof in the Specified Currency) or more in
aggregate principal amount of Notes (whether having identical or different
terms and provisions) will be entitled to receive interest payments on any
Interest Payment Date other than the Maturity Date by wire transfer of
immediately available funds if appropriate wire transfer instructions have
been received in writing by the Trustee not less than 15 calendar days
prior to such Interest Payment Date. Any such wire transfer instructions
received by the Trustee shall remain in effect until revoked by such
holder.
If any Interest Payment Date other than the Maturity Date would
otherwise be a day that is not a Business Day, such Interest Payment Date
shall be postponed to the next succeeding Business Day, except that if
LIBOR is an applicable Interest Rate Basis and such Business Day falls in
the next succeeding calendar month, such Interest Payment Date shall be the
immediately preceding Business Day. If the Maturity Date falls on a day
that is not a Business Day, the required payment of principal, premium, if
any, and interest shall be made on the next succeeding Business Day with
the same force and effect as if made on the date such payment was due, and
no interest shall accrue with respect to such payment for the period from
and after the Maturity Date to the date of such payment on the next
succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law, regulation or executive
order to close in The City of New York; provided, however, that if the
Specified Currency is other than United States dollars, such day is also
not a day on which banking institutions are authorized or required by law,
regulation or executive order to close in the Principal Financial Center
(as defined below) of the country issuing the Specified Currency (or, if
the Specified Currency is European Currency Units ("ECU"), such day is not
a day that appears as an ECU non-settlement day on the display designated
as "ISDE" on the Reuter Monitor Money Rates Service (or a day so designated
by the ECU Banking Association) or, if ECU non-settlement days do not
appear on that page (and are not so designated), is not a day on which
payments in ECU cannot be settled in the international interbank market);
provided, further, that if LIBOR is an applicable Interest Rate Basis, such
day is also a London Business Day (as defined below). "London Business
Day" means (i) if the Index Currency (as defined below) is other than ECU,
any day on which dealings in such Index Currency are transacted in the
London interbank market or (ii) if the Index Currency is ECU, any day that
does not appear as an ECU non-settlement day on the display designated as
"ISDE" on the Reuter Monitor Money Rates Service (or a day so designated by
the ECU Banking Association) or, if ECU non-settlement days do not appear
on that page (and are not so designated), is not a day on which payments in
ECU cannot be settled in the international interbank market. "Principal
Financial Center" means the capital city of the country issuing the
Specified Currency, or solely with respect to the calculation of LIBOR, the
Index Currency, except that with respect to United States dollars,
Australian dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss
francs and ECU, the Principal Financial Center shall be The City of New
York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and Luxembourg,
respectively.
The Trust is obligated to make payments of principal, premium, if any,
and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment
is legal tender for the payment of such debts). If the Specified Currency
is other than United States dollars, except as provided below, any such
amounts so payable by the Trust will be converted by the Exchange Rate
Agent specified above into United States dollars for payment to the holder
of this Note.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive such amounts in such Specified
Currency. If the holder of this Note shall not have duly made an election
to receive all or a specified portion of any payment of principal, premium,
if any, and/or interest in respect of this Note in the Specified Currency,
any United States dollar amount to be received by the holder of this Note
will be based on the highest bid quotation in The City of New York received
by the Exchange Rate Agent at approximately 11:00 A.M., New York City time,
on the second Business Day preceding the applicable payment date from three
recognized foreign exchange dealers (one of whom may be the Exchange Rate
Agent) selected by the Exchange Rate Agent and approved by the Trust for
the purchase by the quoting dealer of the Specified Currency for United
States dollars for settlement on such payment date in the aggregate amount
of such Specified Currency payable to all holders of Foreign Currency Notes
scheduled to receive United States dollar payments and at which the
applicable dealer commits to execute a contract. All currency exchange
costs will be borne by the holder of this Note by deductions from such
payments. If three such bid quotations are not available, payments on this
Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency by submitting a written request for such
payment to the Trustee at its corporate trust office in The City of New
York on or prior to the applicable Record Date or at least 15 calendar days
prior to the Maturity Date, as the case may be. Such written request may
be mailed or hand delivered or sent by cable, telex or other form of
facsimile transmission. The holder of this Note may elect to receive all
or a specified portion of all future payments in the Specified Currency in
respect of such principal, premium, if any, and/or interest and need not
file a separate election for each payment. Such election will remain in
effect until revoked by written notice to the Trustee, but written notice
of any such revocation must be received by the Trustee on or prior to the
applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an
election to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Note in the Specified
Currency and if the Specified Currency is not available due to the
imposition of exchange controls or other circumstances beyond the
reasonable control of the Trust, the Trust will be entitled to satisfy its
obligations to the holder of this Note by making such payment in United
States dollars on the basis of the Market Exchange Rate (as defined below)
on the second Business Day prior to such payment date or, if such Market
Exchange Rate is not then available, on the basis of the most recently
available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the
noon dollar buying rate in The City of New York for cable transfers for
such Specified Currency as certified for customs purposes by (or if not so
certified, as otherwise determined by) the Federal Reserve Bank of New
York. Any payment made under such circumstances in United States dollars
will not constitute an Event of Default (as defined in the Indenture) with
respect to this Note.
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified
portion of any payment of principal, premium, if any, and/or interest in
respect of this Note in the Specified Currency and if such composite
currency is unavailable due to the imposition of exchange controls or other
circumstances beyond the reasonable control of the Trust, then the Trust
will be entitled to satisfy its obligations to the holder of this Note by
making such payment in United States dollars. The amount of each payment
in United States dollars shall be computed by the Exchange Rate Agent on
the basis of the equivalent of the composite currency in United States
dollars. The component currencies of the composite currency for this
purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the
composite currency as of the last day on which the composite currency was
used. The equivalent of the composite currency in United States dollars
shall be calculated by aggregating the United States dollar equivalents of
the Component Currencies. The United States dollar equivalent of each of
the Component Currencies shall be determined by the Exchange Rate Agent on
the basis of the most recently available Market Exchange Rate for each such
Component Currency, or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a
Component Currency shall be divided or multiplied in the same proportion.
If two or more Component Currencies are consolidated into a single
currency, the amounts of those currencies as Component Currencies shall be
replaced by an amount in such single currency equal to the sum of the
amounts of the consolidated Component Currencies expressed in such single
currency. If any Component Currency is divided into two or more
currencies, the amount of the original Component Currency shall be replaced
by the amounts of such two or more currencies, the sum of which shall be
equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on the holder of this
Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above on the face hereof,
in the Addendum hereto, which further provisions shall have the same force
and effect as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if
the face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be
subject to the terms set forth in such Addendum or such "Other/Additional
Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee or its Authenticating Agent by manual signature, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, Wellsford Residential Property Trust has caused
this Note to be duly executed by one of its duly authorized officers.
WELLSFORD RESIDENTIAL PROPERTY TRUST
By________________________________
Title:
[SEAL]
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
By__________________________________
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
WELLSFORD RESIDENTIAL PROPERTY TRUST
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Trust issued and to be issued under an Indenture,
dated as of October 25, 1996, as amended, modified or supplemented from
time to time (the "Indenture"), between the Trust and United States Trust
Company of New York, as Trustee (the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities
thereunder of the Trust, the Trustee and the holders of the Securities, and
of the terms upon which the Securities are, and are to be, authenticated
and delivered. This Note is one of the series of Securities designated as
"Medium-Term Notes Due Nine Months or More from Date of Issue" (the
"Notes"). All terms used but not defined in this Note or in an Addendum
hereto shall have the meanings assigned to such terms in the Indenture or
on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof or the
minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless
otherwise specified on the face hereof in accordance with the provisions of
the following two paragraphs, will not be redeemable or repayable prior to
the Stated Maturity Date.
This Note will be subject to redemption at the option of the
Trust on any date on and after the Initial Redemption Date, if any,
specified on the face hereof, in whole or from time to time in part in
increments of U.S. $1,000 or the minimum Authorized Denomination (provided
that any remaining principal amount hereof shall be at least U.S. $1,000 or
such minimum Authorized Denomination), at the Redemption Price (as defined
below), together with unpaid interest accrued thereon to the date fixed for
redemption (each, a "Redemption Date"), on notice given not more than 60
nor less than 30 calendar days prior to the Redemption Date and in
accordance with the provisions of the Indenture. The "Redemption Price"
shall initially be the Initial Redemption Percentage specified on the face
hereof multiplied by the unpaid principal amount of this Note to be
redeemed. The Initial Redemption Percentage shall decline at each
anniversary of the Initial Redemption Date by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of the unpaid principal amount to be redeemed. In
the event of redemption of this Note in part only, a new Note of like tenor
for the unredeemed portion hereof and otherwise having the same terms as
this Note shall be issued in the name of the holder hereof upon the
presentation and surrender hereof.
This Note will be subject to repayment by the Trust at the option
of the holder hereof on the Optional Repayment Date(s), if any, specified
on the face hereof, in whole or in part in increments of U.S. $1,000 or the
minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal
amount to be repaid, together with unpaid interest accrued thereon to the
date fixed for repayment (each, a "Repayment Date"). For this Note to be
repaid, the Trustee must receive at its office in the Borough of Manhattan,
The City of New York, referred to on the face hereof, at least 30 days but
not more than 60 days prior to the Repayment Date (i) this Note and the
form hereon entitled "Option to Elect Repayment" duly completed or (ii) a
telegram, telex, facsimile transmission, or a letter from a member of a
national securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or trust company in the United States
setting forth the name of the holder hereof, the principal amount of this
Note, the principal amount of this Note to be repaid, the certificate
number or a description of the tenor and terms of this Note, a statement
that the option to elect repayment is being exercised thereby, and a
guarantee that this Note, together with the form hereon entitled "Option to
Elect Repayment" duly completed, will be received by the Trustee not later
than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter, provided that such telegram, telex,
facsimile transmission or letter shall only be effective if this Note and
duly completed form are received by the Trustee by such fifth Business Day.
Exercise of such repayment option by the holder hereof will be irrevocable.
In the event of repayment of this Note in part only, a new Note of like
tenor for the unrepaid portion hereof and otherwise having the same terms
as this Note shall be issued in the name of the holder hereof upon the
presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on
the face hereof, the amount payable to the holder of this Note in the event
of redemption, repayment or acceleration of maturity of this Note will be
equal to the sum of (i) the Issue Price specified on the face hereof
(increased by any accruals of the Discount, as defined below) and, in the
event of any redemption of this Note (if applicable), multiplied by the
Initial Redemption Percentage (as adjusted by the Annual Redemption
Percentage Reduction, if applicable) and (ii) any unpaid interest on this
Note accrued from the Original Issue Date to the Redemption Date, Repayment
Date or date of acceleration of maturity, as the case may be. The
difference between the Issue Price and 100% of the principal amount of this
Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has
accrued as of any Redemption Date, Repayment Date or date of acceleration
of maturity of this Note, such Discount will be accrued using a constant
yield method. The constant yield will be calculated using a 30-day month,
360-day year convention, a compounding period that, except for the Initial
Period (as defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a compounding period),
a coupon rate equal to the initial coupon rate applicable to this Note and
an assumption that the maturity of this Note will not be accelerated. If
the period from the Original Issue Date to the initial Interest Payment
Date (the "Initial Period") is shorter than the compounding period for this
Note, a proportionate amount of the yield for an entire compounding period
will be accrued. If the Initial Period is longer than the compounding
period, then such period will be divided into a regular compounding period
and a short period, with the short period being treated as provided in the
preceding sentence.
The interest rate borne by this Note will be determined as
follows:
(i) Unless the Interest Category of this Note is specified
on the face hereof as a "Floating Rate/Fixed Rate Note" or an
"Inverse Floating Rate Note" or as otherwise specified as
Other/Additional Provisions on the face hereof or in an Addendum
hereto, this Note shall be designated as a "Regular Floating Rate
Note" and, except as set forth below or specified on the face
hereof or in an Addendum hereto, shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis or
Bases (a) plus or minus the Spread, if any, and/or (b) multiplied
by the Spread Multiplier, if any, in each case as specified on
the face hereof. Commencing on the Initial Interest Reset Date,
the rate at which interest on this Note shall be payable shall be
reset as of each Interest Reset Date specified on the face
hereof; provided, however, that the interest rate in effect for
the period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate.
(ii) If the Interest Category of this Note is specified on
the face hereof as a "Floating Rate/Fixed Rate Note", then,
except as set forth below or specified on the face hereof or in
an Addendum hereto, this Note shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis or
Bases (a) plus or minus the Spread, if any, and/or (b) multiplied
by the Spread Multiplier, if any. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note
shall be payable shall be reset as of each Interest Reset Date;
provided, however, that (y) the interest rate in effect for the
period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate and (z)
the interest rate in effect for the period commencing on the
Fixed Rate Commencement Date specified on the face hereof to the
Maturity Date shall be the Fixed Interest Rate specified on the
face hereof or, if no such Fixed Interest Rate is specified, the
interest rate in effect hereon on the day immediately preceding
the Fixed Rate Commencement Date.
(iii) If the Interest Category of this Note is specified on
the face hereof as an "Inverse Floating Rate Note", then, except
as set forth below or specified on the face hereof or in an
Addendum hereto, this Note shall bear interest at the Fixed
Interest Rate minus the rate determined by reference to the
applicable Interest Rate Basis or Bases (a) plus or minus the
Spread, if any, and/or (b) multiplied by the Spread Multiplier,
if any; provided, however, that, unless otherwise specified on
the face hereof or in an Addendum hereto, the interest rate
hereon shall not be less than zero. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note
shall be payable shall be reset as of each Interest Reset Date;
provided, however, that the interest rate in effect for the
period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate.
Except as set forth above or specified on the face hereof or in
an Addendum hereto, the interest rate in effect on each day shall be (i) if
such day is an Interest Reset Date, the interest rate determined as of the
Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (ii) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the most recent Interest Reset Date. If any Interest Reset Date
would otherwise be a day that is not a Business Day, such Interest Reset
Date shall be postponed to the next succeeding Business Day, except that if
LIBOR is an applicable Interest Rate Basis and such Business Day falls in
the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. In addition, if the Treasury Rate is
an applicable Interest Rate Basis and the Interest Determination Date would
otherwise fall on an Interest Reset Date, then such Interest Reset Date
will be postponed to the next succeeding Business Day.
The interest rate applicable to each Interest Reset Period
commencing on the related Interest Reset Date will be determined by the
Calculation Agent as of the applicable Interest Determination Date and will
be calculated by the Calculation Agent on or prior to the Calculation Date
(as defined below), except with respect to LIBOR and the Eleventh District
Cost of Funds Rate, which will be calculated on such Interest Determination
Date. The "Interest Determination Date" with respect to the CD Rate, the
CMT Rate, the Commercial Paper Rate, the Federal Funds Rate and the Prime
Rate will be the second Business Day immediately preceding the applicable
Interest Reset Date; the "Interest Determination Date" with respect to the
Eleventh District Cost of Funds Rate shall be the last business day of the
month immediately preceding the applicable Interest Reset Date on which the
Federal Home Loan Bank of San Francisco (the "FHLB of San Francisco")
publishes the Index (as defined below); and the "Interest Determination
Date" with respect to LIBOR shall be the second London Business Day
immediately preceding the applicable Interest Reset Date, unless the Index
Currency is British pounds sterling, in which case the "Interest
Determination Date" will be the applicable Interest Reset Date. The
"Interest Determination Date" with respect to the Treasury Rate shall be
the day in the week in which the applicable Interest Reset Date falls on
which day Treasury Bills (as defined below) are normally auctioned
(Treasury Bills are normally sold at an auction held on Monday of each
week, unless that day is a legal holiday, in which case the auction is
normally held on the following Tuesday, except that such auction may be
held on the preceding Friday); provided, however, that if an auction is
held on the Friday of the week preceding the applicable Interest Reset
Date, the "Interest Determination Date" shall be such preceding Friday. If
the interest rate of this Note is determined with reference to two or more
Interest Rate Bases specified on the face hereof, the "Interest
Determination Date" pertaining to this Note shall be the most recent
Business Day which is at least two Business Days prior to the applicable
Interest Reset Date on which each Interest Rate Basis is determinable. Each
Interest Rate Basis shall be determined as of such date, and the applicable
interest rate shall take effect on the applicable Interest Reset Date.
Unless otherwise specified on the face hereof or in an Addendum
hereto, the rate with respect to each Interest Rate Basis will be
determined in accordance with the following provisions.
CD Rate. If an Interest Rate Basis for this Note is specified on
the face hereof as the CD Rate, the CD Rate shall be determined as of the
applicable Interest Determination Date (a "CD Rate Interest Determination
Date") as the rate on such date for negotiable United States dollar
certificates of deposit having the Index Maturity specified on the face
hereof as published by the Board of Governors of the Federal Reserve System
in "Statistical Release H.15(519), Selected Interest Rates" or any
successor publication ("H.15(519)") under the heading "CDs (Secondary
Market)", or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on such CD Rate Interest Determination
Date for negotiable United States dollar certificates of deposit of the
Index Maturity as published by the Federal Reserve Bank of New York in its
daily statistical release "Composite 3:30 P.M. Quotations for United States
Government Securities" or any successor publication ("Composite
Quotations") under the heading "Certificates of Deposit." If such rate is
not yet published in either H.15(519) or Composite Quotations by 3:00 P.M.,
New York City time, on the related Calculation Date, then the CD Rate on
such CD Rate Interest Determination Date will be calculated by the
Calculation Agent specified on the face hereof and will be the arithmetic
mean of the secondary market offered rates as of 10:00 A.M., New York City
time, on such CD Rate Interest Determination Date, of three leading nonbank
dealers in negotiable United States dollar certificates of deposit in The
City of New York selected by the Calculation Agent for negotiable United
States dollar certificates of deposit of major United States money center
banks in the market for negotiable United States dollar certificates of
deposit with a remaining maturity closest to the Index Maturity in an
amount that is representative for a single transaction in that market at
that time; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the CD
Rate determined as of such CD Rate Interest Determination Date will be the
CD Rate in effect on such CD Rate Interest Determination Date.
CMT Rate. If an Interest Rate Basis for this Note is specified
on the face hereof as the CMT rate, the CMT Rate shall be determined as of
the applicable Interest Determination Date (a "CMT Rate Interest
Determination Date") as the rate displayed on the Designated CMT Telerate
Page (as defined below) under the caption "...Treasury Constant
Maturities...Federal Reserve Board Release H.15...Mondays Approximately
3:45 P.M.," under the column for the Designated CMT Maturity Index (as
defined below) for (i) if the Designated CMT Telerate Page is 7055, the
rate on such CMT Rate Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the weekly or monthly average, as
specified on the face hereof, for the week or month, as applicable, ended
immediately preceding the week or month, as applicable, in which the
related CMT Rate Interest Determination Date occurs. If such rate is no
longer displayed on the relevant page or is not displayed by 3:00 P.M., New
York City time, on the related Calculation Date, then the CMT Rate for such
CMT Rate Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index as published in
H.15(519). If such rate is no longer published or is not published by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT
Rate on such CMT Rate Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT Maturity Index (or other
United States Treasury rate for the Designated CMT Maturity Index) for the
CMT Rate Interest Determination Date with respect to such Interest Reset
Date as may then be published by either the Board of Governors of the
Federal Reserve System or the United States Department of the Treasury that
the Calculation Agent determines to be comparable to the rate formerly
displayed on the Designated CMT Telerate Page and published in H.15(519).
If such information is not provided by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate on the CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be
a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City
time, on such CMT Rate Interest Determination Date reported, according to
their written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in The City of New York
selected by the Calculation Agent (from five such Reference Dealers
selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation
(or, in the event of equality, one of the lowest)), for the most recently
issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original maturity of approximately the
Designated CMT Maturity Index and a remaining term to maturity of not less
than such Designated CMT Maturity Index minus one year. If the Calculation
Agent is unable to obtain three such Treasury Note quotations, the CMT Rate
on such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic
mean of the secondary market offer side prices as of approximately 3:30
P.M., New York City time, on such CMT Rate Interest Determination Date of
three Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for Treasury
Notes with an original maturity of the number of years that is the next
highest to the Designated CMT Maturity Index and a remaining term to
maturity closest to the Designated CMT Maturity Index and in an amount of
at least U.S.$100 million. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the
Calculation Agent are quoting as mentioned herein, the CMT Rate determined
as of such CMT Rate Interest Determination Date will be the CMT Rate in
effect on such CMT Rate Interest Determination Date. If two Treasury Notes
with an original maturity as described in the second preceding sentence
have remaining terms to maturity equally close to the Designated CMT
Maturity Index, the Calculation Agent will obtain quotations for the
Treasury Note with the shorter remaining term to maturity and will use such
quotations to calculate the CMT Rate as set forth above.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service (or any successor service) on the page specified on the
face hereof (or any other page as may replace such page on that service (or
any successor service) for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519)). If no such page is specified on the
face hereof, the Designated CMT Telerate Page shall be 7052, for the most
recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the United States Treasury securities (either one, two, three,
five, seven, 10, 20 or 30 years) specified on the face hereof with respect
to which the CMT Rate will be calculated. If no such maturity is specified
on the face hereof, the Designated CMT Maturity Index shall be two years.
Commercial Paper Rate. If an Interest Rate Basis for this Note
is specified on the face hereof as the Commercial Paper Rate, the
Commercial Paper Rate shall be determined as of the applicable Interest
Determination Date (a "Commercial Paper Rate Interest Determination Date")
as the Money Market Yield (as defined below) on such date of the rate for
commercial paper having the Index Maturity as published in H.15(519) under
the heading "Commercial Paper". In the event that such rate is not
published by 3:00 P.M., New York City time, on the related Calculation
Date, then the Commercial Paper Rate on such Commercial Paper Rate Interest
Determination Date will be the Money Market Yield of the rate for
commercial paper having the Index Maturity as published in Composite
Quotations under the heading "Commercial Paper" (with an Index Maturity of
one month or three months being deemed to be equivalent to an Index
Maturity of 30 days or 90 days, respectively). If such rate is not yet
published in either H.15(519) or Composite Quotations by 3:00 P.M., New
York City time, on such Calculation Date, then the Commercial Paper Rate on
such Commercial Paper Rate Interest Determination Date will be calculated
by the Calculation Agent and shall be the Money Market Yield of the
arithmetic mean of the offered rates at approximately 11:00 A.M., New York
City time, on such Commercial Paper Rate Interest Determination Date of
three leading dealers of commercial paper in The City of New York selected
by the Calculation Agent for commercial paper having the Index Maturity
placed for an industrial issuer whose bond rating is "AA," or the equi-
valent, from a nationally recognized statistical rating organization;
provided, however, that if the dealers so selected by the Calculation Agent
are not quoting as mentioned in this sentence, the Commercial Paper Rate
determined as of such Commercial Paper Rate Interest Determination Date
will be the Commercial Paper Rate in effect on such Commercial Paper Rate
Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
-----------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper
quoted on a bank discount basis and expressed as a decimal, and "M" refers
to the actual number of days in the Interest Period for which interest is
being calculated.
Eleventh District Cost of Funds Rate. If an Interest Rate Basis
for this Note is specified on the face hereof as the Eleventh District Cost
of Funds Rate, the Eleventh District Cost of Funds Rate shall be determined
as of the applicable Interest Determination Date (an "Eleventh District
Cost of Funds Rate Interest Determination Date") as the rate equal to the
monthly weighted average cost of funds for the calendar month immediately
preceding the month in which such Eleventh District Cost of Funds Rate
Interest Determination Date falls, as set forth under the caption "11th
District" on Telerate Page 7058 as of 11:00 A.M., San Francisco time, on
such Eleventh District Cost of Funds Rate Interest Determination Date. If
such rate does not appear on Telerate Page 7058 on such Eleventh District
Cost of Funds Rate Interest Determination Date, then the Eleventh District
Cost of Funds Rate on such Eleventh District Cost of Funds Rate Interest
Determination Date shall be the monthly weighted average cost of funds paid
by member institutions of the Eleventh Federal Home Loan Bank District that
was most recently announced (the "Index") by the FHLB of San Francisco as
such cost of funds for the calendar month immediately preceding such
Eleventh District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce the Index on or prior to such
Eleventh District Cost of Funds Rate Interest Determination Date for the
calendar month immediately preceding such Eleventh District Cost of Funds
Rate Interest Determination Date, the Eleventh District Cost of Funds Rate
determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in
effect on such Eleventh District Cost of Funds Rate Interest Determination
Date.
Federal Funds Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds
Rate shall be determined as of the applicable Interest Determination Date
(a "Federal Funds Rate Interest Determination Date") as the rate on such
date for United States dollar federal funds as published in H.15(519) under
the heading "Federal Funds (Effective)" or, if not published by 3:00 P.M.,
New York City time, on the Calculation Date, the rate on such Federal Funds
Rate Interest Determination Date as published in Composite Quotations under
the heading "Federal Funds/Effective Rate." If such rate is not published
in either H.15(519) or Composite Quotations by 3:00 P.M., New York City
time, on the related Calculation Date, then the Federal Funds Rate on such
Federal Funds Interest Determination Date shall be calculated by the
Calculation Agent and will be the arithmetic mean of the rates for the last
transaction in overnight United States dollar federal funds arranged by
three leading brokers of federal funds transactions in The City of New York
selected by the Calculation Agent, prior to 9:00 A.M., New York City time,
on such Federal Funds Rate Interest Determination Date; provided, however,
that if the brokers so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Federal Funds Rate determined as of such
Federal Funds Rate Interest Determination Date will be the Federal Funds
Rate in effect on such Federal Funds Rate Interest Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified on
the face hereof as LIBOR, LIBOR shall be determined by the Calculation
Agent as of the applicable Interest Determination Date (a "LIBOR Interest
Determination Date") in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in which case
such single rate will be used) for deposits in the Index Currency having
the Index Maturity, commencing on the applicable Interest Reset Date, that
appear (or, if only a single rate is required as aforesaid, appears) on the
Designated LIBOR Page (as defined below) as of 11:00 A.M., London time, on
such LIBOR Interest Determination Date, or (b) "LIBOR Telerate" is
specified on the face hereof, or if neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified on the face hereof as the method for calculating
LIBOR, the rate for deposits in the Index Currency having the Index
Maturity, commencing on such Interest Reset Date, that appears on the
Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date. If fewer than two such offered rates appear, or if no
such rate appears, as applicable, LIBOR on such LIBOR Interest
Determination Date shall be determined in accordance with the provisions
described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or no rate appears, as the case may
be, on the Designated LIBOR Page as specified in clause (i) above, the
Calculation Agent shall request the principal London offices of each of
four major reference banks in the London interbank market, as selected by
the Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in the Index Currency for the period of the Index
Maturity, commencing on the applicable Interest Reset Date, to prime banks
in the London interbank market at approximately 11:00 A.M., London time, on
such LIBOR Interest Determination Date and in a principal amount that is
representative for a single transaction in such Index Currency in such
market at such time. If at least two such quotations are so provided, then
LIBOR on such LIBOR Interest Determination Date will be the arithmetic mean
of such quotations. If fewer than two such quotations are so provided,
then LIBOR on such LIBOR Interest Determination Date will be the arithmetic
mean of the rates quoted at approximately 11:00 A.M., in the applicable
Principal Financial Center, on such LIBOR Interest Determination Date by
three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Index Currency to leading European
banks, having the Index Maturity and in a principal amount that is
representative for a single transaction in such Index Currency in such
market at such time; provided, however, that if the banks so selected by
the Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined as of such LIBOR Interest Determination Date shall be LIBOR in
effect on such LIBOR Interest Determination Date.
"Index Currency" means the currency or composite currency
specified on the face hereof as to which LIBOR shall be calculated. If no
such currency or composite currency is specified on the face hereof, the
Index Currency shall be United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified
on the face hereof, the display on the Reuter Monitor Money Rates Service
(or any successor service) on the page specified on the face hereof (or any
other page as may replace such page on such service (or any successor
service)), for the purpose of displaying the London interbank rates of
major banks for the Index Currency, or (b) if "LIBOR Telerate" is specified
on the face hereof or neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified on the face hereof as the method for calculating LIBOR, the
display on the Dow Jones Telerate Service (or any successor service) on the
page specified on the face hereof (or any other page as may replace such
page on such service (or any successor service)), for the purpose of
displaying the London interbank rates of major banks for the Index
Currency.
Prime Rate. If an Interest Rate Basis for this Note is specified
on the face hereto as the Prime Rate, the Prime Rate shall be determined as
of the applicable Interest Determination Date (a "Prime Rate Interest
Determination Date") as the rate on such date as such rate is published in
H.15(519) under the heading "Bank Prime Loan." If such rate is not
published prior to 3:00 P.M., New York City time, on the related
Calculation Date, then the Prime Rate shall be the arithmetic mean of the
rates of interest publicly announced by each bank that appears on the
Reuters Screen USPRIME1 Page (as defined below) as such bank's prime rate
or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters
Screen USPRIME1 Page for such Prime Rate Interest Determination Date, then
the Prime Rate shall be the arithmetic mean of the prime rates quoted on
the basis of the actual number of days in the year divided by a 360-day
year as of the close of business on such Prime Rate Interest Determination
Date by four major money center banks in The City of New York selected by
the Calculation Agent. If fewer than four such quotations are so provided,
the Prime Rate shall be the arithmetic mean of four prime rates quoted on
the basis of the actual number of days in the year divided by a 360-day
year as of the close of business on such Prime Rate Interest Determination
Date as furnished in The City of New York by the major money center banks,
if any, that have provided such quotations and by a reasonable number of
substitute banks or trust companies to obtain four such prime rate
quotations, provided such substitute banks or trust companies are organized
and doing business under the laws of the United States, or any State
thereof, each having total equity capital of at least U.S.$500 million and
being subject to supervision or examination by Federal or State authority,
selected by the Calculation Agent to provide such rate or rates; provided,
however, that if the banks or trust companies so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Prime
Rate determined as of such Prime Rate Interest Determination Date will be
the Prime Rate in effect on such Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as
page "USPRIME1" on the Reuter Monitor Money Rates Service (or any successor
service) (or such other page as may replace the USPRIME1 page on such
service (or any successor service) for the purpose of displaying prime
rates or base lending rates of major United States banks).
Treasury Rate. If an Interest Rate Basis for this Note is
specified on the face hereof as the Treasury Rate, the Treasury Rate shall
be determined as of the applicable Interest Determination Date (a "Treasury
Rate Interest Determination Date") as the rate from the auction held on
such Treasury Rate Interest Determination Date (the "Auction") of direct
obligations of the United States ("Treasury Bills") having the Index
Maturity, as such rate is published in H.15(519) under the heading
"Treasury bills-auction average (investment)" or, if not published by 3:00
P.M., New York City time, on the related Calculation Date, the auction
average rate of such Treasury Bills (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the Auction of Treasury Bills
having the Index Maturity are not reported as provided above by 3:00 P.M.,
New York City time, on such Calculation Date, or if no such Auction is
held, then the Treasury Rate shall be calculated by the Calculation Agent
and shall be a yield to maturity (expressed as a bond equivalent on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) of the arithmetic mean of the secondary market bid rates, as of ap-
proximately 3:30 P.M., New York City time, on such Treasury Rate Interest
Determination Date, of three leading primary United States government
securities dealers selected by the Calculation Agent, for the issue of
Treasury Bills with a remaining maturity closest to the Index Maturity;
provided, however, that if the dealers so selected by the Calculation Agent
are not quoting as mentioned in this sentence, the Treasury Rate determined
as of such Treasury Rate Interest Determination Date will be the Treasury
Rate in effect on such Treasury Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not
be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law
of general application.
The "Calculation Date", if applicable, pertaining to any Interest
Determination Date shall be the earlier of (i) the tenth calendar day after
such Interest Determination Date or, if such day is not a Business Day, the
next succeeding Business Day or (ii) the Business Day immediately preceding
the applicable Interest Payment Date or the Maturity Date, as the case may
be. At the request of the Holder hereof, the Calculation Agent will
provide to the Holder hereof the interest rate hereon then in effect and,
if determined, the interest rate that will become effective as a result of
a determination made for the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by
multiplying the principal amount hereof by an accrued interest factor.
Such accrued interest factor shall be computed by adding the interest
factor calculated for each day in the applicable Interest Period. Unless
otherwise specified as the Day Count Convention on the face hereof, the
interest factor for each such date shall be computed by dividing the
interest rate applicable to such day by 360 if the CD Rate, the Commercial
Paper Rate, the Eleventh District Cost of Funds Rate, the Federal Funds
Rate, LIBOR or the Prime Rate is an applicable Interest Rate Basis or by
the actual number of days in the year if the CMT Rate or the Treasury Rate
is an applicable Interest Rate Basis. Unless otherwise specified as the
Day Count Convention on the face hereof, the interest factor for this Note,
if the interest rate is calculated with reference to two or more Interest
Rate Bases, shall be calculated in each period in the same manner as if
only the Applicable Interest Rate Basis specified on the face hereof
applied.
All percentages resulting from any calculation on this Note shall
be rounded to the nearest one hundred-thousandth of a percentage point,
with five one-millionths of a percentage point rounded upwards, and all
amounts used in or resulting from such calculation on this Note shall be
rounded, in the case of United States dollars, to the nearest cent or, in
the case of a Specified Currency other than United States dollars or a
composite currency, to the nearest unit (with one-half cent or unit being
rounded upwards).
If an Event of Default, as defined in the Indenture, shall occur
and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the
entire indebtedness of the Notes or (ii) certain covenants and Events of
Default with respect to the Notes, in each case upon compliance with
certain conditions set forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Trust and the rights of the holders of the Securities at
any time by the Trust and the Trustee with the consent of the holders of
not less than a majority of the aggregate principal amount of all
Securities at the time outstanding and affected thereby. The Indenture
also contains provisions permitting the holders of not less than a majority
of the aggregate principal amount of the outstanding Securities of any
series, on behalf of the holders of all such Securities, to waive
compliance by the Trust with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the holders of not less
than a majority of the aggregate principal amount of the outstanding
Securities of any series, in certain instances, to waive, on behalf of all
of the holders of Securities of such series, certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the
holder of this Note shall be conclusive and binding upon such holder and
upon all future holders of this Note and other Notes issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Trust,
which is absolute and unconditional, to pay principal, premium, if any, and
interest in respect of this Note at the times, places and rate or formula,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, the transfer of this Note is registrable in
the Security Register of the Trust upon surrender of this Note for
registration of transfer at the office or agency of the Trust in any place
where the principal hereof and any premium or interest hereon are payable,
duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Trust and the Security Registrar, duly executed
by, the holder hereof or by his attorney duly authorized in writing, and
thereupon one or more new Notes, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations
but otherwise having the same terms and conditions, as requested by the
holder hereof surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Trust may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment of this Note for registration of
transfer, the Trust, the Trustee and any agent of the Trust or the Trustee
may treat the holder in whose name this Note is registered as the owner
thereof for all purposes, whether or not this Note be overdue, and neither
the Trust, the Trustee nor any such agent shall be affected by notice to
the contrary.
This Note and all documents, agreements, understandings and
arrangements relating to any transaction contemplated hereby or thereby
have been executed or entered into by the undersigned in his/her capacity
as an officer or trustee of the Trust which has been formed as a Maryland
real estate investment trust pursuant to the Declaration of Trust of the
Trust, dated as of July 20, 1992, as amended, and not individually, and
neither the trustees, officers, employees or shareholders of the Trust
shall be bound or have any personal liability hereunder or thereunder. The
holder of this Note by accepting this Note waives and releases all such
liability. This waiver and release are part of the consideration for the
issue of this Note. Each party hereto shall look solely to the assets of
the Trust for satisfaction of any liability of the Trust in respect of this
Note and all documents, agreements, understandings and arrangements
relating to any transaction contemplated hereby or thereby and will not
seek recourse or commence any action against any of the trustees, officers
or shareholders of the Trust or any of their personal assets for the
performance or payment of any obligation hereunder or thereunder. The
foregoing shall also apply to any future documents, agreements,
understandings, arrangements and transactions between the parties hereto.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York.
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Note, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above
list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
|______________________________|___________________________________________
___________________________________________________________________________
______________________________
(Please print or typewrite name and address including postal zip code of
assignee)
___________________________________________________________________________
___ this Note and all rights thereunder hereby irrevocably constituting
and appointing
___________________________________________________________________________
______ Attorney to transfer this Note on the books of the Trustee, with
full power of substitution in the premises.
Dated:_____________________ _________________________________
_________________________________
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of
this Note in every particular, with-
out alteration or enlargement or any
change whatsoever.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Trust to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at __________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its
corporate trust office in the Borough of Manhattan, The City of New York,
currently located at 114 West 47th Street, New York, New York 10036, this
Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be increments of U.S.$1,000
(or, if the Specified Currency is other than United States dollars, the
minimum Authorized Denomination specified on the face hereof)) which the
holder elects to have repaid and specify the denomination or denominations
(which shall be an Authorized Denomination) of the Notes to be issued to
the holder for the portion of this Note not being repaid (in the absence of
any such specification, one such Note will be issued for the portion not
being repaid).
Principal Amount
to be Repaid: $____________ ___________________________
Notice: The signature(s) on
Date: __________________________ this Option to Elect Repayment
must correspond with the name(s) as
written upon the face of this Note
in every particular, without
alteration or enlargement or any
change whatsoever.
INDENTURE, dated as of October 25, 1996, between WELLSFORD
RESIDENTIAL PROPERTY TRUST, a Maryland real estate investment
trust (hereinafter called the "Company"), having its principal
executive office at 610 Fifth Avenue, New York, New York 10020
and UNITED STATES TRUST COMPANY OF NEW YORK, a New York
corporation, as Trustee hereunder (hereinafter called the
"Trustee"), having its Corporate Trust
Office at 114 West 47th Street, New York, New York 10036.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time
for its lawful purposes senior debt securities (hereinafter
called the "Securities") evidencing its unsecured and
unsubordinated indebtedness, and has duly authorized the
execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to
aggregate principal amount, to bear interest at the rates or
formulas, to mature at such times and to have such other
provisions as shall be fixed therefor as hereinafter provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are deemed to be
incorporated into this Indenture and shall, to the extent
applicable, be governed by such provisions.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all
Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or the context
otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article, and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the TIA, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash
transaction" and "self-liquidating paper," as used in TIA
Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
and
(4) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Three, Article
Five, Article Six and Article Ten, are defined in those Articles.
In addition, the following terms shall have the indicated
respective meanings:
"Acquired Debt" means Debt of a Person (i) existing at the
time such Person becomes a Subsidiary or (ii) assumed in connec-
tion with the acquisition of assets from such Person, in each
case, other than Debt incurred in connection with, or in
contemplation of, such Person becoming a Subsidiary or such
acquisition. Acquired Debt shall be deemed to be incurred on the
date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Subsidiary.
"Act" has the meaning specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by a Security, under circumstances specified therein, to
be paid by the Company in respect of certain taxes imposed on
certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Annual Service Charge" as of any date means the maximum
amount which is payable in any period for interest on, and
original issue discount of, Debt of the Company and its
Subsidiaries and the amount of dividends which are payable in
respect of any Disqualified Stock.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the
English language or in an official language of the country of
publication, customarily published on each Business Day, whether
or not published on Saturdays, Sundays or holidays, and of
general circulation in each place in connection with which the
term is used or in the financial community of each such place.
Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in
the same or in different Authorized Newspapers in the same city
meeting the foregoing requirements and in each case on any
Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means a Security which is payable to
bearer.
"Board of Trustees" means the board of trustees of the
Company, the executive committee or any committee of that board
duly authorized to act for it in respect hereof.
"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 Trustees, and to be in full
force and effect on the date of such certification, and delivered
to the Trustee. Where any provision of this Indenture refers to
action to be taken pursuant to a Board Resolution (including
establishment of any series of the Securities and the forms and
terms thereof), such action may be taken by any committee,
officer or employee of the Company authorized to take such action
by a Board Resolution (including, without limitation, in any
Officers' Certificate of officers authorized to act in connection
with such matter by or pursuant to such Board Resolution).
"Business Day," when used with respect to any Place of
Payment or any other particular location referred to in this
Indenture or in the Securities, means, unless otherwise specified
with respect to any Securities pursuant to Section 301, any day,
other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which banking institutions in that Place of Payment
or particular location are required or authorized by law,
regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any
capital stock (including preferred stock), shares, interests,
participations or other ownership interests (however designated)
of such Person and any rights (other than debt securities
convertible or exchangeable for corporate stock), warrants or
options to purchase any thereof.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres,
S.A., or its successor.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after execution of this
instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Common Shares" means, with respect to any Person, capital
stock or shares of beneficial interest issued by such Person
other than Preferred Shares.
"Company" means the Person named as the "Company" in the
first paragraph of this Indenture until a successor corporation
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its
Chairman of the Board of Trustees, the President or a Vice
President, and by its Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Consolidated Income Available for Debt Service" for any
period means Earnings from Operations of the Company and its
Subsidiaries plus amounts which have been deducted, and minus
amounts which have been added, for the following (without
duplication): (a) interest on Debt of the Company and its
Subsidiaries, (b) provision for taxes of the Company and its
Subsidiaries based on income, (c) amortization of debt discount,
(d) provisions for gains and losses on properties and property
depreciation and amortization, (e) the effect of any noncash
charge resulting from a change in accounting principles in
determining Earnings from Operations for such period and (f)
amortization of deferred charges.
"Conversion Event" means the cessation of use of (i) a
Foreign Currency (other than the ECU or other currency unit) both
by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other
public institutions of or within the international banking
community, (ii) the ECU both within the European Monetary System
and for the settlement of transactions by public institutions of
or within the European Communities or (iii) any currency unit (or
composite currency) other than the ECU for the purposes for which
it was established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall
be principally administered, which office at the date hereof is
located at 114 West 47th Street, New York, New York 10036 and,
for purposes of the Place of Payment provisions of Section 1002,
is located at 770 Broadway, New York, New York 10003.
"corporation" includes corporations, associations, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning set forth in Section 501.
"Debt" of the Company or any Subsidiary means any
indebtedness of the Company or any Subsidiary, whether or not
contingent, in respect of (i) borrowed money or evidenced by
bonds, notes, debentures or similar instruments, (ii)
indebtedness for borrowed money secured by any mortgage, pledge,
lien, charge, encumbrance or any security interest existing on
property owned by the Company or any Subsidiary (each securing
such debt, an "Encumbrance"), (iii) the reimbursement
obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the
balance deferred and unpaid of the purchase price of any property
or services, except any such balance that constitutes an accrued
expense or trade payable, or all conditional sale obligations or
obligations under any title retention agreement, (iv) the
principal amount of all obligations of the Company or any
Subsidiary with respect to redemption, repayment or other
repurchase of any Disqualified Stock or (v) any lease of property
by the Company or any Subsidiary as lessee which is reflected on
the Company's Consolidated Balance Sheet as a capitalized lease
in accordance with GAAP to the extent, in the case of items of
indebtedness under (i) through (iii) above, that any such items
(other than letters of credit) would appear as a liability on the
Company's Consolidated Balance Sheet in accordance with GAAP, and
also includes, to the extent not otherwise included, any
obligation by the Company or any Subsidiary to be liable for, or
to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business), Debt
of another Person (other than the Company or any Subsidiary) (it
being understood that Debt shall be deemed to be incurred by the
Company or any Subsidiary whenever the Company or such Subsidiary
shall create, assume, guarantee or otherwise become liable in
respect thereof).
"Defaulted Interest" has the meaning specified in Section
307.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock of such Person which by the terms of such Capital
Stock (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable), upon
the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, (ii) is convertible into or exchangeable or
exercisable for Debt or Disqualified Stock or (iii) is redeemable
at the option of the holder thereof, in whole or in part, in each
case on or prior to the Stated Maturity of the series of Debt
Securities.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the
time shall be legal tender for the payment of public and private
debts.
"DTC" means The Depository Trust Company.
"Earnings from Operations" for any period means net earnings
excluding gains and losses on sales of investments, net as
reflected in the financial statements of the Company and its
Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of the European
Communities.
"Encumbrance" has the meaning specified in the definition of
"Debt" set forth in this Section 101.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear
System.
"European Communities" means the European Economic
Community, the European Coal and Steel Community and the European
Atomic Energy Community.
"European Monetary System" means the European Monetary
System established by the Resolution of December 5, 1978 of the
Council of the European Communities.
"Event of Default" has the meaning specified in Article
Five.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder by
the Commission.
"Financial Statements" has the meaning specified in Section
1009.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU issued
by the government of one or more countries other than the United
States of America or by any recognized confederation or
association of such governments.
"GAAP" means generally accepted accounting principles as
used in the United States applied on a consistent basis as in
effect from time to time; provided, that solely for purposes of
calculating the financial covenants contained herein, "GAAP"
shall mean generally accepted accounting principles as used in
the United States on the date hereof, applied on a consistent
basis.
"Government Obligations" means securities which are (i)
direct obligations of the United States of America or the
government which issued the Foreign Currency in which the
Securities of a particular series are payable, for the payment of
which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such
government which issued the Foreign Currency in which the
Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation
by the United States of America or such other government, which,
in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to
any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific
payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security
Register and, in the case of a Bearer Security, the bearer
thereof and, when used with respect to any coupon, shall mean the
bearer thereof.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof, and shall include the terms of
particular series of Securities established as contemplated by
Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument,
"Indenture" shall mean, with respect to any one or more series of
Securities for which such Person is Trustee, this instrument as
originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of the or those particular series of
Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of
Securities for which such Person is not Trustee, regardless of
when such terms or provisions were adopted, and exclusive of any
provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee,
was not a party.
"Indexed Security" means a Security the terms of which
provide that the principal amount thereof payable at Stated
Maturity may be more or less than the principal face amount
thereof at original issuance.
"interest" when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
Maturity, shall mean interest payable after Maturity, and, when
used with respect to a Security which provides for the payment of
Additional Amounts pursuant to Section 1011, includes such
Additional Amounts.
"Interest Payment Date" means, when used with respect to any
Security, the Stated Maturity of an installment of interest on
such Security.
"Make-Whole Amount" means the amount, if any, in addition to
principal which is required by a Security, under the terms and
conditions specified therein or as otherwise specified as
contemplated by Section 301, to be paid by the Company to the
Holder thereof in connection with any optional redemption or
accelerated payment of such Security.
"Maturity" means, when used with respect to any Security,
the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration
of acceleration, notice of redemption, notice of option to elect
repayment, repurchase or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Trustees, the President or a Vice
President and by the Treasurer, an Assistant Treasurer, 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
satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose
payment or redemption or repayment at the option of the
Holder money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust
by the Company (if the Company shall act as its own Paying
Agent) for the holders of such Securities and any coupons
appertaining thereto; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or other provision therefor
satisfactory to the Trustee has been made;
(iii) Securities, except solely to the extent provided
in Section 401, 1402 or 1403, as applicable, with respect to
which the Company has effected defeasance and/or covenant
defeasance as provided in Article Four or Fourteen;
(iv) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to
this Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(v) Securities converted into Common Shares or
Preferred Shares pursuant to or in accordance with this
Indenture if the terms of such Securities provide for
convertibility pursuant to Section 301;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder or are present at a meeting of
Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal
amount of an Original Issue Discount Security that may be counted
in making such determination or calculation and that shall be
deemed to be Outstanding for such purpose shall be equal to the
amount of principal thereof that would be (or shall have been
declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity
thereof pursuant to Section 502, (ii) the principal amount of any
Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar
equivalent, determined pursuant to Section 301 as of the date
such Security is originally issued by the Company, of the
principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent as of such date of original
issuance of the amount determined as provided in clause (i)
above) of such Security, (iii) the principal amount of any
Indexed Security that may be counted in making such determination
or calculation and that shall be deemed outstanding for such
purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided
with respect to such Indexed Security pursuant to Section 301,
and (iv) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee
shall be protected in making such calculation or in relying upon
any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be
so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium or Make-Whole Amount, if any)
or interest on any Securities or coupons on behalf of the
Company, or if no such Person is authorized, 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" means, when used with respect to the
Securities of or within any series, the place or places where the
principal of (and premium or Make-Whole Amount, if any) and
interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means
every previous Security evidencing all or a portion of the same
debt as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to
which a mutilated, destroyed, lost or stolen coupon appertains
shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security or the Security to which the
mutilated, destroyed, lost or stolen coupon appertains.
"Preferred Shares" means, with respect to any Person,
capital stock or shares of beneficial interest issued by such
Person that is entitled to a preference or priority over any
other capital stock or shares of beneficial interest issued by
such Person upon any distribution of such Person's assets,
whether by dividend or upon liquidation.
"Redemption Date" means, when used with respect to any
Security to be redeemed, in whole or in part, the date fixed for
such redemption by or pursuant to this Indenture.
"Redemption Price" means, when used with respect to any
Security to be redeemed, the price at which it is to be redeemed
pursuant to this Indenture.
"Registered Security" means any Security which is registered
in the Security Register.
"Regular Record Date" for the installment of interest
payable on any Interest Payment Date on the Registered Securities
of or within any series means the date specified for that purpose
as contemplated by Section 301, whether or not a Business Day.
"Repayment Date" means, when used with respect to any
Security to be repaid or repurchased at the option of the Holder,
the date fixed for such repayment or repurchase by or pursuant to
this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid or repurchased at the option of the Holder,
the price at which it is to be repaid or repurchased by or
pursuant to this Indenture.
"Responsible Officer" means, when used with respect to the
Trustee, any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder by
the Commission.
"Security" has the meaning stated in the first recital of
this Indenture and, more particularly, means any Security or
Securities authenticated and delivered under this Indenture;
provided, however, that, if at any time there is more than one
Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall
have the meaning stated in the first recital of this Indenture
and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities
of or within any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (within the meaning of Regulation S-X,
promulgated under the Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" means, when used with respect to any
Security or any installment of principal thereof or interest
thereon, the date specified in such Security or a coupon
representing such installment of interest as the fixed date on
which the principal of such Security or such installment of
principal or interest is due and payable.
"Statistical Release" means the statistical release
designated "H.15(519)" or any successor publication which is
published weekly by the Federal Reserve System and which
establishes yields on actively traded United States government
securities adjusted to constant maturities or, if such
statistical release is not published at the time of any
determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Company.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which a majority of (a) the voting
power of the voting equity securities or (b) the outstanding
equity interests of which are owned, directly or indirectly, by
such Person. For the purposes of this definition, "voting equity
securities" means equity securities having voting power for the
election of directors, whether at all times or only so long as no
senior class of security has such voting power by reason of any
contingency.
"Total Assets" as of any date means the sum of (i) the
Company's Undepreciated Real Estate Assets and (ii) all other
assets of the Company determined in accordance with GAAP (but
excluding accounts receivable and intangibles).
"Total Unencumbered Assets" means the sum of (i) those
Undepreciated Real Estate Assets not subject to an Encumbrance
and (ii) all other assets of the Company and its Subsidiaries not
subject to an Encumbrance determined in accordance with GAAP (but
excluding accounts receivable and intangibles.)
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended and as in force at the date as of which this
Indenture was executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this Indenture until a successor Trustee shall
have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder; provided, however, that
if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of or within any series shall
mean only the Trustee with respect to the Securities of that
series.
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate
assets of the Company and its Subsidiaries on such date before
depreciation and amortization determined on a consolidated basis
in accordance with GAAP.
"United States" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, the United
States of America (including the states and the District of
Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States person" means, unless otherwise specified
with respect to any Securities pursuant to Section 301, an
individual who is a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in
or under the laws of the United States or an estate or trust the
income of which is subject to United States federal income
taxation regardless of its source.
"Unsecured Debt" means Debt which is not secured by any
mortgage, lien, charge, pledge or security interest of any kind
upon any of the properties of the Company or any Subsidiary.
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the
most recent redetermination of interest on such Security) and as
set forth in such Security in accordance with generally accepted
United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon
any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating
that all conditions precedent, if any, provided for in this
Indenture (including covenants, compliance with which constitute
conditions precedent) 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 (excluding
certificates delivered pursuant to Section 1010) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as
to whether or not such condition or covenant has been
complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been
complied with.
SECTION 103. Form of Documents Delivered to Trustee. In
any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion as to some matters and one or more
other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon an Opinion
of Counsel, or a certificate or representations by counsel,
unless such officer knows, or in the exercise of reasonable care
should know, that the opinion, certificate or representations
with respect to the matters upon which his certificate or opinion
is based are erroneous. Any such Opinion of Counsel or
certificate or representations may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating
that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the
certificate or opinion or representations as to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders of the Outstanding
Securities of all series or one or more series, as the case
may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Holders in person or by agents duly appointed in writing.
If Securities of a series are issuable as Bearer Securities,
any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture
to be given or taken by Holders of Securities of such series
may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed
in writing, at any meeting of Holders of Securities of such
series duly called and held in accordance with the
provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when
such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments
and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any
such instrument or of a writing appointing any such agent,
or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and 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. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section
1506.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the
affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law to
take acknowledgements of deeds, certifying that the
individual signing such instrument or writing acknowledged
to him the execution thereof. Where such execution is by a
signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be
proved in any other reasonable manner which the Trustee
deems sufficient.
(c) The ownership of Registered Securities shall be
proved by the Security Register.
(d) The ownership of Bearer Securities may be proved
by the production of such Bearer Securities or by a
certificate executed, as depositary, by any trust company,
bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned
such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or
such facts may be proved by the certificate or affidavit of
the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that
such ownership of any Bearer Security continues until
(1) another certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced,
or (2) such Bearer Security is produced to the Trustee by
some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The
ownership of Bearer Securities may also be proved in any
other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company
may, at its option, in or pursuant to a Board Resolution,
fix in advance a record date for the determination of
Holders entitled to give such request, demand, authoriza-
tion, direction, notice, consent, waiver or other Act, but
the Company shall have no obligation to do so. Notwith-
standing TIA Section 316(c), such record date shall be the
record date specified in or pursuant to such Board
Resolution, which shall be a date not earlier than the date
30 days prior to the first solicitation of Holders generally
in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed,
such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of
the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall
be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not
later than 11 months after the record date.
(f) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any
Security shall bind every future Holder of the same Security
and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee, any Security Registrar,
any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is
made upon such Security.
SECTION 105. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or
filed with
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust
Administration, or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed first
class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first
paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver. Where this
Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice
shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first class postage prepaid,
to each such Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders of
Registered Securities is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or the
sufficiency of any notice to Holders of Bearer Securities given
as provided herein. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification
to Holders of Registered Securities as shall be made with the
approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301,
where this Indenture provides for notice to Holders of Bearer
Securities of any event, such notices shall be sufficiently given
if published in an Authorized Newspaper in The City of New York
and in such other city or cities as may be specified in such
Securities, and if the Securities of such series are listed on
any stock exchange outside the United States, in any place at
which such Securities are listed on a securities exchange to the
extent that such securities exchange so requires, on a Business
Day, such publication to be not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of
such notice. Any such notice shall be deemed to have been given
on the date of such publication or, if published more than once,
on the date of the first such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any
other cause it shall be impracticable to publish any notice to
Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to any particular Holder of
Bearer Securities as provided above, nor any defect in any notice
so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency
of any notice to Holders of Registered Securities given as
provided herein.
Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture
shall be in the English language, except that any published
notice may be in an official language of the country of
publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken
in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction
hereof.
SECTION 108. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in
this Indenture or in any Security or coupon shall be invalid,
illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this
Indenture or in the Securities or coupons appertaining thereto,
express or implied, shall give to any Person, other than the
parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the
Holders any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 111. No Personal Liability. This Indenture, the
Securities or coupons appertaining thereto and all documents,
agreements, understandings and arrangements relating to this
Indenture and the Securities have been executed or entered into
by an officer of the Company in his/her capacity as an officer of
the Company which has been formed as a Maryland real estate
investment trust pursuant to a Declaration of Trust dated as of
July 20, 1992, as amended, and not individually, and neither the
trustees, officers, employees or shareholders of the Company
shall be bound or have any personal liability hereunder or
thereunder. Each Holder of a Security by accepting such Security
waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
All persons dealing with the Company shall look solely to the
assets of the Company for satisfaction of any liability of the
Company in respect of this Indenture, the Securities and all
documents, agreements, understandings and arrangements relating
to the transactions contemplated hereunder and will not seek
recourse or commence any action against any of the trustees,
officers, employees or shareholders of the Company or any of
their personal assets for the performance or payment of any
obligation hereunder or thereunder. The foregoing shall also
apply to any future documents, agreements, understandings,
arrangements and transactions between the parties hereto and any
Holder of a Security relating to the Securities and any coupons
appertaining thereto or this Indenture and the transactions
related hereto and thereto.
SECTION 112. Governing Law. This Indenture and the
Securities and coupons shall be governed by and construed in
accordance with the law of the State of New York. This Indenture
is subject to the provisions of the TIA that are required to be
part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 113. Legal Holidays. In any case where any
Interest Payment Date, Redemption Date, Repayment Date, sinking
fund payment date, Stated Maturity or Maturity of any Security
shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of
any series which specifically states that such provision shall
apply in lieu hereof), payment of interest or any Additional
Amounts or principal (and premium or Make-Whole Amount, if any)
need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date, Repayment Date or sinking fund
payment date, or at the Stated Maturity or Maturity, provided
that no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption
Date, Repayment Date, sinking fund payment date, Stated Maturity
or Maturity, as the case may be.
<PAGE>
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered
Securities, if any, of each series and the Bearer Securities, if
any, and related coupons of each series, shall be in
substantially the forms as shall be established in or pursuant to
one or more indentures supplemental hereto or Board Resolutions,
shall have such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this
Indenture, or any indenture supplemental hereto, and may have
such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as
the Company may deem appropriate and as are not inconsistent with
the provisions of this Indenture, or as may be required to comply
with any law or with any rule or regulation made pursuant thereto
or with any rule or regulation of any stock exchange on which the
Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these
methods on a steel engraved border or steel engraved borders or
may be produced in any other manner, all as determined by the
officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of
Authentication. Subject to Section 611, the Trustee's
certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By _____________________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If
Securities of or within a series are issuable in global form, as
specified as contemplated by Section 301, then, notwithstanding
clause (8) of Section 301 and the provisions of Section 302, any
such Security shall represent such of the Outstanding Securities
of such series as shall be specified therein and may provide that
it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series
represented thereby may from time to time be increased or
decreased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section
303 or 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver
any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or
in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall
apply to any Security represented by a Security in global form as
if such Security was never issued and sold by the Company and the
Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of
Securities represented thereby, together with the written
statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of
principal of and any premium or Make-Whole Amount and interest on
any Security in permanent global form shall be made to the Person
or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and
any agent of the Company and the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities
represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case
of a permanent global Security in bearer form, Euroclear or
CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenti-
cated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant
to authority granted by one or more Board Resolutions and,
subject to Section 303, set forth, or determined in the manner
provided, in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as
applicable (each of which (except for the matters set forth in
clauses (1), (2) and (15) below), if so provided, may be
determined from time to time by the Company with respect to
unissued Securities of or within the series when issued from time
to time):
(1) the title of the Securities of or within the
series (which shall distinguish the Securities of such
series from all other series of Securities);
(2) any limit upon the aggregate principal amount of
the Securities of or within the series that may be
authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other
Securities of or within the series pursuant to Section 304,
305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such
date or dates will be determined, on which the principal of
the Securities of or within the series shall be payable and
the amount of principal payable thereon;
(4) the rate or rates at which the Securities of or
within the series shall bear interest, if any, or the method
by which such rate or rates shall be determined, the date or
dates from which such interest shall accrue or the method by
which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the
method by which such date shall be determined and the basis
upon which interest shall be calculated if other than that
of a 360-day year comprised of twelve 30-day months;
(5) the place or places, if any, other than or in
addition to the Borough of Manhattan, The City of New York,
where the principal of (and premium or Make-Whole Amount, if
any), interest, if any, on, and Additional Amounts, if any,
payable in respect of, Securities of or within the series
shall be payable, any Registered Securities of or within the
series may be surrendered for registration of transfer,
exchange or conversion and notices or demands to or upon the
Company in respect of the Securities of or within the series
and this Indenture may be served;
(6) the period or periods within which, the price or
prices (including the premium or Make-Whole Amount, if any),
at which, the currency or currencies, currency unit or units
or composite currency or currencies in which, and other
terms and conditions upon which Securities of or within the
series may be redeemed, in whole or in part, at the option
of the Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem,
repay or purchase Securities of or within the series
pursuant to any sinking fund or analogous provision or at
the option of a Holder thereof, and the period or periods
within which or the date or dates on which, the price or
prices at which, the currency or currencies, currency unit
or units or composite currency or currencies in which, and
other terms and conditions upon which Securities of or
within the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which any
Registered Securities of or within the series shall be
issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities
of or within the series shall be issuable;
(9) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of or within
the series that shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502
or, if applicable, the portion of the principal amount of
Securities of the series that is convertible in accordance
with the provisions of this Indenture, or the method by
which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or
Currencies in which payment of the principal of (and premium
or Make-Whole Amount, if any) or interest or Additional
Amounts, if any, on the Securities of or within the series
shall be payable or in which the Securities of or within the
series shall be denominated;
(12) whether the amount of payments of principal of
(and premium or Make-Whole Amount, if any) or interest, if
any, on the Securities of or within the series may be
determined with reference to an index, formula or other
method (which index, formula or method may be based, without
limitation, on one or more currencies, currency units,
composite currencies, commodities, equity indices or other
indices), and the manner in which such amounts shall be
determined;
(13) whether the principal of (and premium or Make-
Whole Amount, if any) or interest or Additional Amounts, if
any, on the Securities of or within the series are to be
payable, at the election of the Company or a Holder thereof,
in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which
such Securities are denominated or stated to be payable, the
period or periods within which (including the Election
Date), and the terms and conditions upon which, such
election may be made, and the time and manner of, and
identity of the exchange rate agent with responsibility for,
determining the exchange rate between the currency or
currencies, currency unit or units or composite currency or
currencies in which such Securities are denominated or
stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies
in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to the
Holders of Securities of or within the series upon the
occurrence of such events as may be specified;
(15) any deletions from, modifications of or additions
to the Events of Default or covenants of the Company with
respect to Securities of or within the series, whether or
not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein;
(16) whether Securities of or within the series are to
be issuable as Registered Securities, Bearer Securities
(with or without coupons) or both, any restrictions
applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of or
within the series may be exchanged for Registered Securities
of or within the series and vice versa (if permitted by
applicable laws and regulations), whether any Securities of
or within the series are to be issuable initially in
temporary global form and whether any Securities of or
within the series are to be issuable in permanent global
form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global Security
may exchange such interests for Securities of such series
and of like tenor of any authorized form and denomination
and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305,
and, if Registered Securities of or within the series are to
be issuable as a global Security, the identity of the
depositary for such series;
(17) the date as of which any Bearer Securities of or
within the series and any temporary global Security
representing Outstanding Securities of or within the series
shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the
Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any
Bearer Security of the series shall be payable, if otherwise
than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest
payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner
provided in Section 304;
(19) the applicability, if any, of Sections 1402
and/or 1403 to the Securities of or within the series and
any provisions in modification of, in addition to or in lieu
of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be
issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security of such series) only
upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions;
(21) if the Securities of or within the series are to
be issued upon the exercise of debt warrants, the time,
manner and place for such Securities to be authenticated and
delivered;
(22) whether and under what circumstances the Company
will pay Additional Amounts as contemplated by Section 1011
on the Securities of or within the series to any Holder who
is not a United States person (including any modification to
the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the
Company will have the option to redeem such Securities
rather than pay such Additional Amounts (and the terms of
any such option);
(23) the obligation, if any, of the Company to permit
the conversion of the Securities of such series into the
Company's Common Shares or Preferred Shares, as the case may
be, and the terms and conditions upon which such conversion
shall be effected (including, without limitation, the
initial conversion price or rate, the conversion period, any
adjustment of the applicable conversion price and any
requirements relative to the reservation of such shares for
purposes of conversion);
(24) if convertible, in connection with the
preservation of the Company's status as a real estate
investment trust under the applicable provisions of the
Internal Revenue Code of 1986, as amended, any applicable
limitations on the ownership or transferability of the
Common Shares or Preferred Shares into which such series of
Securities is convertible; and
(25) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons
appertaining to any Bearer Securities of such series, if any,
shall be substantially identical except, in the case of
Registered or Bearer Securities issued in global form, as to
denomination and except as may otherwise be provided in or
pursuant to such Board Resolution (subject to Section 303) and
set forth, or determined in the manner provided, in such
Officers' Certificate, or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at
the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of
additional Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board
Resolutions or supplemental indentures, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate
setting forth the terms of the Securities of such series.
SECTION 302. Denominations. The Securities of each series
shall be issuable in such denominations as shall be specified as
contemplated by Section 301. With respect to Securities of any
series denominated in Dollars, in the absence of any such
provisions with respect to the Securities of any series, the
Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and
any integral multiple thereof and the Bearer Securities of such
series, other than Bearer Securities issued in global form (which
may be of any denomination), shall be issuable in denominations
of $5,000.
SECTION 303. Execution, Authentication, Delivery and
Dating. The Securities and any coupons appertaining thereto
shall be executed on behalf of the Company by its Chairman of the
Board or its President or one of its Vice Presidents, under its
trust seal reproduced thereon, and attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these
officers on the Securities and coupons may be manual or facsimile
signatures of the present or any future such authorized officer
and may be imprinted or otherwise reproduced on the Securities.
Securities or coupons appertaining thereto bearing the
manual or facsimile signatures of individuals who were at any
time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of
any series, together with any coupon appertaining thereto,
executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery
of such Securities, and the Trustee in accordance with the
Company Order shall authenticate and deliver such Securities;
provided, however, that, in connection with its original
issuance, no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided
further that, unless otherwise specified with respect to any
series of Securities pursuant to Section 301, a Bearer Security
may be delivered in connection with its original issuance only if
the Person entitled to receive such Bearer Security shall have
furnished a certificate to Euroclear or CEDEL, as the case may
be, in the form set forth in Exhibit A-1 to this Indenture or
such other certificate as may be specified with respect to any
series of Securities pursuant to Section 301, dated no earlier
than 15 days prior to the earlier of the date on which such
Bearer Security is delivered and the date on which any temporary
Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this
Indenture.
Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached
and cancelled.
If all of the Securities of any series are not to be issued
at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may
set forth procedures acceptable to the Trustee for the issuance
of such Securities and determining the terms of particular
Securities of such series, such as interest rate or formula,
maturity date, date of issuance and date from which interest
shall accrue.
In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Section 315(a) through 315(d)) shall be fully
protected in relying upon:
(i) an Opinion of Counsel complying with Section 102
and stating that:
(a) the form or forms of such Securities and any
coupons have been, or will have been upon compliance
with such procedures as may be specified therein,
established in conformity with the provisions of this
Indenture;
(b) the terms of such Securities and any coupons
have been, or will have been upon compliance with such
procedures as may be specified therein, established in
conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons
appertaining thereto, when completed pursuant to such
procedures as may be specified therein, and executed
and delivered by the Company to the Trustee for
authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in
accordance with this Indenture and issued by the
Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute
legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and
other similar laws of general applicability relating to
or affecting the enforcement of creditors' rights
generally and to general equitable principles and to
such other matters as may be specified therein; and
(ii) an Officers' Certificate complying with Section
102 and stating that all conditions precedent provided for
in this Indenture relating to the issuance of such
Securities have been, or will have been upon compliance with
such procedures as may be specified therein, complied with
and that, to the best of the knowledge of the signers of
such certificate, no Event of Default with respect to such
Securities shall have occurred and be continuing.
The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties, obligations or
immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all the Securities of any series are not
to be issued at one time, it shall not be necessary to deliver an
Officers' Certificate otherwise required pursuant to Section 301
or a Company Order or an Opinion of Counsel or an Officers'
Certificate otherwise required pursuant to the preceding
paragraph at the time of issuance of each Security of such
series, but such order, opinion and certificates, with
appropriate modifications to cover such future issuances, shall
be delivered at or before the time of issuance of the first
Security of such series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the
date specified as contemplated by Section 301.
No Security or coupon appertaining thereto shall be entitled
to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Security or the Security
to which such coupon appertains a certificate of authentication
substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if
any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security
has never been issued or sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities
of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered
form, or, if authorized, in bearer form with one or more
coupons or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as
conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such
temporary Securities may be in global form.
Except in the case of temporary Securities in global
form (which shall be exchanged in accordance with Section
304(b) or as otherwise provided in or pursuant to a Board
Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or
agency of the Company in a Place of Payment for that series,
without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities of any
series (accompanied by any non-matured coupons appertaining
thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series
of authorized denominations; provided, however, that no
definitive Bearer Security shall be delivered in exchange
for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance
with the conditions set forth in Section 303. Until so
exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
(b) Unless otherwise provided as contemplated in
Section 301, this Section 304(b) shall govern the exchange
of temporary Securities issued in global form other than
through the facilities of DTC. If any such temporary
Security is issued in global form, then such temporary
global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of
Euroclear and CEDEL for credit to the respective accounts of
the beneficial owners of such Securities (or to such other
accounts as they may direct).
Without unnecessary delay but in any event not later
than the date specified in or determined pursuant to the
terms of, any such temporary global Security (the "Exchange
Date"), the Company shall deliver to the Trustee definitive
Securities, in an aggregate principal amount equal to the
principal amount of such temporary global Security, executed
by the Company. On or after the Exchange Date, such
temporary global Security shall be surrendered by the Common
Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in
part, for definitive Securities without charge, and the
Trustee shall authenticate and deliver, in exchange for each
portion of such temporary global Security, an equal
aggregate principal amount of definitive Securities of or
within the same series of authorized denominations and of
like tenor as the portion of such temporary global Security
to be exchanged. The definitive Securities to be delivered
in exchange for any such temporary global Security shall be
in bearer form, registered form, permanent global bearer
form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and,
if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however, that,
unless otherwise specified in such temporary global
Security, upon such presentation by the Common Depositary,
such temporary global Security shall be accompanied by a
certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary
global Security held for its account then to be exchanged
and a certificate dated the Exchange Date or a subsequent
date and signed by CEDEL as to the portion of such temporary
global Security held for its account then to be exchanged,
each in the form set forth in Exhibit A-2 to this Indenture
or in such other form as may be established pursuant to
Section 301; and provided further that definitive Bearer
Securities shall be delivered in exchange for a portion of a
temporary global Security only in compliance with the
requirements of Section 303.
Unless otherwise specified in such temporary global
Security, the interest of a beneficial owner of Securities
of a series in a temporary global Security shall be
exchanged for definitive Securities of the same series and
of like tenor following the Exchange Date when the account
holder instructs Euroclear or CEDEL, as the case may be, to
request such exchange on his behalf and delivers to
Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301),
dated no earlier than 15 days prior to the Exchange Date,
copies of which certificate shall be available from the
officers of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities
and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made
free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes
delivery of such definitive Securities in person at the
offices of Euroclear or CEDEL. Definitive Securities in
bearer form to be delivered in exchange for any portion of a
temporary global Security shall be delivered only outside
the United States.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as
definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest
payable on a temporary global Security on an Interest
Payment Date for Securities of such series occurring prior
to the applicable Exchange Date shall be payable to
Euroclear and CEDEL on such Interest Payment Date upon
delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit
A-2 to this Indenture (or in such other forms as may be
established pursuant to Section 301), for credit without
further interest on or after such Interest Payment Date to
the respective accounts of Persons who are the beneficial
owners of such temporary global Security on such Interest
Payment Date and who have each delivered to Euroclear or
CEDEL, as the case may be, a certificate dated no earlier
than 15 days prior to the Interest Payment Date occurring
prior to such Exchange Date in the form set forth as Exhibit
A-1 to this Indenture (or in such other forms as may be
established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy
the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph
of Section 303 of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary
global Security with respect to which such certification was
made will be exchanged for definitive Securities of the same
series and of like tenor on the Exchange Date or the date of
certification if such date occurs after the Exchange Date,
without further act or deed by such beneficial owners.
Except as otherwise provided in this paragraph, no payments
of principal or interest owing with respect to a beneficial
interest in a temporary global Security will be made unless
and until such interest in such temporary global Security
shall have been exchanged for an interest in a definitive
Security. Any interest so received by Euroclear and CEDEL
and not paid as herein provided shall be returned to the
Trustee prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate
Trust Office of the Trustee or in any office or agency of the
Company in a Place of Payment a register for each series of
Securities (the registers maintained in such office or in any
such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the "Security
Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of
Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby
initially appointed "Security Registrar" for the purpose of
registering Registered Securities and transfers of Registered
Securities on such Security Register as herein provided. In the
event that the Trustee shall cease to be Security Registrar, it
shall have the right to examine the Security Register at all
reasonable times.
Subject to the provisions of this Section 305, upon
surrender for registration of transfer of any Registered Security
of any series at any office or agency of the Company in a Place
of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations
and of a like aggregate principal amount, bearing a number not
contemporaneously outstanding, and containing identical terms and
provisions.
Subject to the provisions of this Section 305, at the option
of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of
any authorized denomination or denominations and of a like
aggregate principal amount, containing identical terms and
provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such
Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section
301, Bearer Securities may not be issued in exchange for
Registered Securities.
If (but only if) permitted as contemplated by Section 301,
at the option of the Holder, Bearer Securities of any series may
be exchanged for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining.
If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in
default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if
there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to
receive the amount of payment; provided, however, that, except as
otherwise provided in Section 1002, interest represented by
coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security
of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series
and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture. Whenever any
Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security
shall be exchangeable only as provided in this paragraph. If the
depositary for any permanent global Security is DTC, then, unless
the terms of such global Security expressly permit such global
Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but
not in part, only to a nominee of DTC, or by a nominee of DTC to
DTC, or to a successor to DTC for such global Security selected
and approved by the Company or to a nominee of such successor to
DTC. If at any time DTC notifies the Company that it is
unwilling or unable to continue as depositary for the applicable
global Security or Securities or if at any time DTC ceases to be
a clearing agency registered under the Exchange Act if so
required by applicable law or regulation, the Company shall
appoint a successor depositary with respect to such global
Security or Securities. If (x) a successor depositary for such
global Security or Securities is not appointed by the Company
within 90 days after the Company receives such notice or becomes
aware of such unwillingness, inability or ineligibility, (y) an
Event of Default has occurred and is continuing and the
beneficial owners representing a majority in principal amount of
the applicable series of Securities represented by such global
Security or Securities advise DTC to cease acting as depositary
for such global Security or Securities or (z) the Company, in its
sole discretion, determines at any time that all Outstanding
Securities (but not less than all) of any series issued or
issuable in the form of one or more global Securities shall no
longer be represented by such global Security or Securities
(provided, however, the Company may not make such determination
during the 40-day restricted period provided by Regulation S
under the Securities Act or during any other similar period
during which the Securities must be held in global form as may be
required by the Securities Act), then the Company shall execute,
and the Trustee shall authenticate and deliver definitive
Securities of like series, rank, tenor and terms in definitive
form in an aggregate principal amount equal to the principal
amount of such global Security or Securities. If any beneficial
owner of an interest in a permanent global Security is otherwise
entitled to exchange such interest for Securities of such series
and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301 and
provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary
delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Company shall execute, and
the Trustee shall authenticate and deliver definitive Securities
in aggregate principal amount equal to the principal amount of
such beneficial owner's interest in such permanent global
Security. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be
surrendered for exchange by DTC or such other depositary as shall
be specified in the Company Order with respect thereto to the
Trustee, as the Company's agent for such purpose; provided,
however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection
of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested
may be among those selected for redemption; and provided further
that no Bearer Security delivered in exchange for a portion of a
permanent global Security shall be mailed or otherwise delivered
to any location in the United States. If a Registered Security
is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and
before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date
and 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 of such Registered
Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person
to whom interest in respect of such portion of such permanent
global Security is payable in accordance with the provisions of
this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if
so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar,
duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not
involving any transfer.
The Company or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any
Security if such Security may be among those selected for
redemption during a period beginning at the opening of business
15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of
the mailing of the relevant notice of redemption and (B) if such
Securities are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption or, if
such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in
part, except, in the case of any Registered Security to be
redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor; provided that
such Registered Security shall be simultaneously surrendered for
redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities. If any mutilated Security or a Security with a
mutilated coupon appertaining to it is surrendered to the Trustee
or the Company, together with, in proper cases, such security or
indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series
and principal amount, containing identical terms and provisions
and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the
surrendered Security.
If there shall be delivered to the Company and to the
Trustee (i) evidence to their satisfaction of the destruction,
loss or theft of any Security or coupon, and (ii) such security
or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon
has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security
or in exchange for the Security to which a destroyed, lost or
stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and
principal amount, containing identical terms and provisions and
bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which
such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two
paragraphs, in case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing a
new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen coupon
appertains, pay such Security or coupon; provided, however, that
payment of principal of (and premium or Make-Whole Amount, if
any), any interest on and any Additional Amounts with respect to,
Bearer Securities shall, except as otherwise provided in Section
1002, be payable only at an office or agency located outside the
United States and, unless otherwise specified as contemplated by
Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining
thereto.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security, or in exchange for a Security to which a
destroyed, lost or stolen coupon appertains, shall constitute an
original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be
at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with
any and all other Securities of that series and their coupons, if
any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights
Preserved. Except as otherwise specified with respect to a
series of Securities in accordance with the provisions of Section
301, interest on any Registered Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the
office or agency of the Company maintained for such purpose
pursuant to Section 1002; provided; however, that each
installment of interest on any Registered Security may at the
Company's option be paid by (i) mailing a check for such
interest, payable to or upon the written order of the Person
entitled thereto pursuant to Section 308, to the address of such
Person as it appears on the Security Register or (ii) transfer to
an account maintained by the payee located inside the United
States.
Unless otherwise provided as contemplated by Section 301
with respect to the Securities of any series, payment of interest
may be made, in the case of a Bearer Security and at the
Company's option, by transfer to an account maintained by the
payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security which provides that interest, if
any, payable on any Interest Payment Date will be paid to DTC,
Euroclear and/or CEDEL, as the case may be, with respect to that
portion of such permanent global Security held for its account by
Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received
by it in respect of such permanent global Security to the
accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close
of business (at an office or agency in a Place of Payment for
such series) on any Regular Record Date and before the opening of
business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in
respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any
interest on any Registered Security of any series that is
payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall
forthwith cease to be payable to the registered Holder thereof on
the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after
such notice is received by the Trustee), and at the same
time the Company shall deposit with the Trustee an amount of
money in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series)
equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to
the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 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 Registered Securities of such series at his
address as it appears in the Security Register not less than
10 days prior to such Special Record Date. The Trustee may,
in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least
once in an Authorized Newspaper in each Place of Payment,
but such publications shall not be a condition precedent to
the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the
following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of
Payment for such series in exchange for a Registered
Security of such series after the close of business at such
office or agency on any Special Record Date and before the
opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to
such proposed date of payment and Defaulted Interest will
not be payable on such proposed date of payment in respect
of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of
this Indenture.
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any
other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners. Prior to due
presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered
Security is registered as the owner of such Security for the
purpose of receiving payment of principal of (and premium or
Make-Whole Amount, if any), and (subject to Sections 305 and 307)
interest on, such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue,
and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any
agent of the Company or the Trustee may treat the Holder of any
Bearer Security and the Holder of any coupon as the absolute
owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue,
and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Security in global form or
for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee,
or any agent of the Company or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished
by any depositary, as a Holder, with respect to such global
Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of
customary practices governing the exercise of the rights of such
depositary (or its nominee) as Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of
the Holder, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and
any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be
promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee
(or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. If the
Company shall so acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. Cancelled Securities and
coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to
the Company, unless by a Company Order the Company directs their
return to it.
SECTION 310. Computation of Interest. Except as otherwise
specified as contemplated by Section 301 with respect to
Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
<PAGE>
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This
Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of
registration of transfer or exchange of Securities of such series
herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1011), and the Trustee, upon
receipt of a Company Order, and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has
been waived as provided in Section 305, (ii) Securities
and coupons of such series which have been mutilated,
destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose
surrender has been waived as provided in Section 1106,
and (iv) Securities and coupons of such series for
whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company
and thereafter repaid to the Company for discharge from
such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the
case of (i) or (ii) below, any coupons appertaining
thereto not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for
the purpose an amount in the currency or currencies,
currency unit or units or composite currency or
currencies in which the Securities of such series are
payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation,
for principal (and premium or Make-Whole Amount, if
any) and interest, and any Additional Amounts with
respect thereto, to the date of such deposit (in the
case of Securities which have become due and payable)
or the Stated Maturity or Redemption Date, as the case
may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture
as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee and any predecessor
Trustee under Section 606, the obligations of the Company to any
Authenticating Agent under Section 611 and, if money shall have
been deposited with and held by the Trustee pursuant to subclause
(B) of clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003, shall
survive.
SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of
the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and
premium or Make-Whole Amount, if any), and any interest and
Additional Amounts for whose payment such money has been
deposited with or received by the Trustee, but such money need
not be segregated from other funds except to the extent required
by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. Subject to any
modifications, additions or deletions relating to any series of
Securities as contemplated pursuant to Section 301, "Event of
Default," wherever used herein with respect to any particular
series of Securities, means any one of the following events
(whatever the reason for such Event of Default and whether or not
it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or
governmental body), it being understood that an Event of Default
with respect to a particular series of Securities does not
constitute an Event of Default with respect to any other series
of Securities:
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of or
within that series or of any coupon appertaining thereto,
when such interest, Additional Amounts or coupon becomes due
and payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of the principal of (or
premium or Make-Whole Amount, if any, on) any Security of
that series when due and payable at its Maturity; or
(3) default in the deposit of any sinking fund
payment, when and as due by the terms of any Security of
that series; or
(4) default in the performance, or breach, of any
covenant of the Company in this Indenture with respect to
any Security of that series (other than a covenant or a
default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of
such default for a period of 60 days after there has been
given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
or
(5) a default under any bond, debenture, note or other
evidence of indebtedness for borrowed money of the Company,
or under any mortgage, indenture or other instrument of the
Company (including a default with respect to Securities of
any series other than that series) under which there may be
issued or by which there may be secured any indebtedness for
borrowed money of the Company (or by any Subsidiary, the
repayment of which the Company has guaranteed or for which
the Company is directly responsible or liable as obligor or
guarantor), whether such indebtedness now exists or shall
hereafter be created, which default shall constitute a
failure to pay an aggregate principal amount exceeding
$10,000,000 of such indebtedness when due and payable after
the expiration of any applicable grace period with respect
thereto and shall have resulted in such indebtedness in an
aggregate principal amount exceeding $10,000,000 becoming or
being declared due and payable prior to the date on which it
would otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration
having been rescinded or annulled, within a period of 30
days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that
series a written notice specifying such default and
requiring the Company to cause such indebtedness to be
discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of
Default" hereunder; or
(6) the entry by a court of competent jurisdiction of
one or more judgments, orders or decrees against the Company
or any of its Subsidiaries in an aggregate amount (excluding
amounts covered by insurance) in excess of $10,000,000 and
such judgments, orders or decrees remain undischarged,
unstayed and unsatisfied in an aggregate amount (excluding
amounts covered by insurance) in excess of $10,000,000 for a
period of 30 consecutive days; or
(7) the Company or any Significant Subsidiary pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of
its creditors; or
(8) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all
of either of its property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary,
and the order or decree remains unstayed and in effect for 90
days; or
(9) any other Event of Default provided with respect
to Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means
Title 11, U.S. Code or any similar Federal or state law for the
relief of debtors and the term "Custodian" means any receiver,
trustee, assignee, liquidator or other similar official under any
Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of
any series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of
that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms
thereof) of, and the Make-Whole Amount, if any, on, all the
Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by
the Holders), and upon any such declaration such principal or
specified portion thereof shall become immediately due and
payable. If an Event of Default with respect to the Securities
set forth in Sections 501(7) or (8) occurs and is continuing,
then in every such case all the Securities shall become
immediately due and payable, without notice to the Company, at
the principal amount thereof plus accrued interest to the date
the Securities are paid plus the Make-Whole Amount, if any.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if:
(1) The Company has paid or deposited with the Trustee
a sum sufficient to pay in the currency, currency unit or
composite currency in which the Securities of such series
are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series):
(A) all overdue installments of interest on and
any Additional Amounts payable in respect of all
Outstanding Securities of that series and any related
coupons;
(B) the principal of (and premium or Make-Whole
Amount, if any, on) any Outstanding Securities of that
series which have become due otherwise than by such
declaration of acceleration and interest thereon at the
rate or rates borne by or provided for in such
Securities;
(C) to the extent that payment of such interest
is lawful, interest upon overdue installments of
interest and any Additional Amounts at the rate or
rates borne by or provided for in such Securities;
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default with respect to Securities
of that series, other than the nonpayment of the principal
of (or premium or Make-Whole Amount, if any) or interest on
Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment
of interest or Additional Amounts, if any, on any Security
of any series and any related coupon when such interest or
Additional Amount becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium or Make-Whole Amount, if any, on) any Security
of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Securities of
such series and coupons, the whole amount then due and payable on
such Securities and coupons for principal (and premium or Make-
Whole Amount, if any) and interest and Additional Amount, with
interest upon any overdue principal (and premium or Make-Whole
Amount, if any) and, to the extent that payment of such interest
shall be legally enforceable, upon any overdue installments of
interest or Additional Amounts, if any, at the rate or rates
borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the
Company or any other obligor upon such Securities of such series
and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any
other obligor upon such Securities of such series, wherever
situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other
obligor upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities of any series shall
then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal,
premium or Make-Whole Amount, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or
otherwise:
(i) to file and prove a claim for the whole amount,
or such lesser amount as may be provided for in the
Securities of such series, of principal (and premium or
Make-Whole Amount, if any) and interest and Additional
Amounts, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and
(ii) to collect and receive any moneys or other
Securities or property payable or deliverable upon any such
claims or upon the conversion or exchange of such Securities
so received and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial
proceeding is hereby authorized by each Holder of Securities of
such series and coupons to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and any predecessor
Trustee, their agents and counsel, and any other amounts due the
Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf
of any Holder of a Security or coupon any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or coupons or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons. All rights of action and claims under
this Indenture or any of the Securities or coupons may be
prosecuted and enforced by the Trustee (to the extent permitted
by applicable law) without the possession of any of the
Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for
the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account
of principal (or premium or Make-Whole Amount, if any) or
interest and any Additional Amounts, upon presentation of the
Securities or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
and any predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and
unpaid upon the Securities and coupons for principal (and
premium or Make-Whole Amount, if any) and interest and any
Additional Amounts payable, in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and
coupons for principal (and premium or Make-Whole Amount, if
any), interest and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company.
SECTION 507. Limitation on Suits. No Holder of any
Security of any series or any related coupon shall have any right
to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to
the Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
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
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or
to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal
and ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium or Make-Whole Amount, if any, Interest and
Additional Amounts. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the
right which is absolute and unconditional to receive payment of
the principal of (and premium or Make-Whole Amount, if any) and
(subject to Sections 305 and 307) interest on, and any Additional
Amounts in respect of, such Security or payment of such coupon on
the respective due dates expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case the Company, the Trustee
and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and
respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the
Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders
of not less than a majority in principal amount of the
Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities
of such series, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be unduly prejudicial to
the Holders of Securities of such series not joining
therein.
SECTION 513. Waiver of Past Defaults. The Holders of not
less than a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons waive any past
default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium or
Make-Whole Amount, if any) or interest on or Additional
Amounts payable in respect of any Security of such series or
any related coupons, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or Event
of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury,
stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of any undertaking to
pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit having
due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or
premium or Make-Whole Amount, if any) or interest on or
Additional Amounts payable with respect to any Security on or
after the respective Stated Maturities expressed in such Security
(or in the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after
the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice
of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that,
except in the case of a default in the payment of the principal
of (or premium or Make-Whole Amount, if any) or interest on or
any Additional Amounts with respect to any Security of such
series, or in the payment of any sinking fund installment with
respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as
Responsible Officers of the Trustee in good faith determine that
the withholding of such notice is in the interests of the Holders
of the Securities and coupons of such series; and provided
further that in the case of any default or breach of the
character specified in Section 501(4) with respect to the
Securities and coupons of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to the
Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) the Trustee shall perform only such duties as are
expressly undertaken by it to perform under this Indenture;
(2) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
coupon or other paper or document believed by it to be
genuine and to have been signed or presented by the proper
party or parties;
(3) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request
or Company Order (other than delivery of any Security,
together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section
303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Trustees may be
sufficiently evidenced by a Board Resolution;
(4) 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;
(5) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(6) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
of Securities of any series or any related coupons pursuant
to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(7) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally
or by agent or attorney;
(8) 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
(9) the Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of
any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities,
except the Trustee's certificate of authentication, and in any
coupons shall be taken as the statements of the Company, and
neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the
Trustee represents that it is duly authorized to execute and
deliver this Indenture, authenticate the Securities and perform
its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other
agent of the Company, in its individual or any other capacity,
may become the owner or pledgee of Securities and coupons and,
subject to TIA Sections 310(b) and 311, may otherwise deal with
the Company with the same rights it would have if it were not
Trustee, Paying Agent, Security Registrar, Authenticating Agent
or such other agent.
SECTION 605. Money Held in Trust. Money held by the
Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement. The Company
agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee
upon its request for all reasonable expenses, disbursements
and advances incurred or made by it 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 any such expense,
disbursement or advance may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee and any
predecessor Trustee for, and to hold it harmless against,
any loss, liability or expense, arising out of or in
connection with the acceptance or administration of the
trust or trusts or the performance of its duties hereunder,
including the costs and expenses of enforcing the Indenture
(including, without limitation, this Section 606), or
defending itself against any claim (whether asserted by any
Holder or the Company or any other party) or liability in
connection with the exercise or performance of any of its
powers or duties hereunder except to the extent any such
loss, liability or expense may be attributable to its own
negligence or bad faith.
The Trustee's right to receive payments of any amounts due
to the Trustee under this Section 606 shall not be subordinated
to any other general unsecured obligations of the Company but
rather shall be pari passu with all other general unsecured
obligations of the Company, and the Securities shall be
subordinated to the Trustee's right to receive payment hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior
to the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the
payment of principal of (or premium or Make-Whole Amount, if any)
or interest on particular Securities or any coupons.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests. There shall at all times be a Trustee
hereunder which shall be eligible to act as Trustee under TIA
Section 310(a)(1) and shall have a combined capital and surplus
of at least $50,000,000. If such corporation publishes reports
of condition at least annually, pursuant to law or the
requirements of Federal, State, Territorial or District of
Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 608. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment
by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written
notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the
Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request
therefor by the Company or by any Holder of a Security
who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after written
request therefor by the Company or by any Holder of a
Security who has been a bona fide Holder of a Security
for at least six months, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by or pursuant to a
Board Resolution may remove the Trustee and appoint a
successor Trustee with respect to all Securities, or (ii)
subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities
and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause with respect to the
Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the
Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect
to the Securities of any series shall be appointed by Act of
the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to
the Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the
Holders of Securities and accepted appointment in the manner
hereinafter provided, any Holder of a Security who has been
a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others
similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with
respect to Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the
Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series in the
manner provided for notices to the Holders of Securities in
Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Securities, every such
successor Trustee shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request
of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the retiring Trustee,
and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a
successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the retiring Trustee
and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof,
wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or
change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust
or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on
request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee
shall be qualified and eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business. Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities or coupons
shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities or coupons. In case any
Securities or coupons shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate
and deliver such Securities or coupons, in either its own name or
that of its predecessor Trustee, with the full force and effect
which this Indenture provides for the certificate of
authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any
time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one
or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series
issued upon exchange, registration of transfer or partial
redemption or repayment thereof, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Any such appointment shall be evidenced by an
instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished
to the Company. Wherever reference is made in this Indenture to
the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be
provided pursuant to Section 301, shall at all times be a bank or
trust company or corporation organized and doing business and in
good standing under the laws of the United States of America or
of any State or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital
and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authorities. If
such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
In case at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be party,
or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the
execution or filing of any paper or further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the
Trustee for such series and to the Company. The Trustee for any
series of Securities may at any time terminate the agency of an
Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the
Trustee for such series may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of or
within the series with respect to which such Authenticating Agent
will serve in the manner set forth in Section 106. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of
this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of
its reasonable expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By: _______________________________
as Authenticating Agent
By: _______________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding
the same, agrees with the Company and the Trustee that neither
the Company nor the Trustee nor any Authenticating Agent nor any
Paying Agent nor any Security Registrar shall be held accountable
by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA
Section 312, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made
under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after May
15 of each year commencing with the first May 15 after the first
issuance of Securities pursuant to this Indenture, the Trustee
shall transmit by mail to all Holders of Securities as provided
in TIA Section 313(c) a brief report dated as of such May 15 if
required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission,
copies of the annual reports and of the information,
documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act; or, if the Company is
not required to file information, documents or reports
pursuant to either of such Sections, then it will file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information,
documents and reports which may be required pursuant to
Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time
to time by the Commission, such additional information,
documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture
as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to the Holders of Securities,
within 30 days after the filing thereof with the Trustee, in
the manner and to the extent provided in TIA Section 313(c),
such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to
the Trustee:
nde semi-annually, not later than 15 days after the
Regular Record Date for interest for each series of
Securities, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the
Holders of Registered Securities of such series as of such
Regular Record Date, or if there is no Regular Record Date
for interest for such series of Securities, semi-annually,
upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of
any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is
furnished,
provided, however, that, so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and
Sales, Leases and Conveyances Permitted Subject to Certain
Conditions. The Company may consolidate with, or sell, lease or
convey all or substantially all of its assets to, or merge with
or into any other Person, provided that in any such case, (i)
either the Company shall be the continuing entity, or the
successor entity (if other than the Company) formed by or
resulting from any such consolidation or merger or which shall
have received the transfer of such assets shall be a Person
organized and existing under the laws of the United States or a
State thereof and such successor entity shall expressly assume
the due and punctual payment of the principal of (and premium or
Make-Whole Amount, if any) and any interest (including all
Additional Amounts, if any, payable pursuant to Section 1011) on
all of the Securities, according to their terms, and the due and
punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company by
supplemental indenture, complying with Article Nine hereof,
satisfactory to the Trustee, executed and delivered to the
Trustee by such Person and (ii) immediately after giving effect
to such transaction and treating any indebtedness which becomes
an obligation of the Company or any Subsidiary as a result
thereof as having been incurred by the Company or such Subsidiary
at the time of such transaction, no Event of Default, and no
event which, after notice or the lapse of time, or both, would
become an Event of Default, shall have occurred and be
continuing.
SECTION 802. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, lease or
conveyance and upon any such assumption by the successor entity,
such successor entity shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as
the party of the first part, and the predecessor entity, except
in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such
successor entity thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all
of the Securities issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee;
and, upon the order of such successor entity, instead of the
Company, and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the
Trustee for authentication, and any Securities which such
successor entity thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so
issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter
issued in accordance with the terms of this Indenture as though
all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued
as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel.
Any consolidation, merger, sale, lease or conveyance permitted
under Section 801 is also subject to the condition that the
Trustee receive an Officers' Certificate and an Opinion of
Counsel to the effect that any such consolidation, merger, sale,
lease or conveyance, and the assumption by any successor entity,
complies with the provisions of this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 1. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders of Securities or
coupons, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental hereto, in
form reasonably satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities
contained; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities
(and if such Events of Default are to be for the benefit of
less than all series of Securities, stating that such Events
of Default are expressly being included solely for the
benefit of such series); provided, however, that in respect
of any such additional Events of Default such supplemental
indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may
limit the right of the Holders of a majority in aggregate
principal amount of that or those series of Securities to
which such additional Events of Default apply to waive such
default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be
registrable as to principal, to change or eliminate any
restrictions on the payment of principal of or any premium,
Make-Whole Amount or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for
Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided that any such
action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons
in any material respect; or
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
shall become effective only when there is no Security
Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit
of such provisions; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of
any series and any related coupons as permitted by Sections
201 and 301 including the provisions and procedures relating
to Securities convertible into Common Shares or Preferred
Shares, as the case may be; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent
with any other provisions herein, or to make any other
provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with
the provisions of this Indenture or to make any other
changes, provided that in each case, such provisions shall
not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any
material respect; or
(10) to close this Indenture with respect to the
authentication and delivery of additional series of
Securities or to qualify, or maintain qualification of, this
Indenture under the TIA; or
(11) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Securities pursuant to Sections 401, 1402 and 1403; provided
in each case that any such action shall not adversely affect
the interests of the Holders of Securities of such series
and any related coupons or other series of Securities in any
material respect.
SECTION 2. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such
supplemental indenture, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities and any related
coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder
of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or
premium or Make-Whole Amount, if any, on) or any installment
of principal of or interest on, any Security; or reduce the
principal amount thereof or the rate or amount of interest
thereon or any Additional Amounts payable in respect
thereof, or any premium or Make-Whole Amount payable upon
the redemption thereof, or change any obligation of the
Company to pay Additional Amounts pursuant to Section 1011
(except as contemplated by Section 801(1) and permitted by
Section 901(1)), or reduce the amount of the principal of an
Original Issue Discount Security or Make-Whole Amount, if
any, that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502
or the amount thereof payable in bankruptcy pursuant to
Section 504; or adversely affect any right of repayment at
the option of the Holder of any Security, or change any
Place of Payment where, or the currency or currencies,
currency unit or units or composite currency or currencies
in which, the principal of any Security or any premium or
Make-Whole Amount or any Additional Amounts payable in
respect thereof or the interest thereon is payable; or
impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of
the Holder, on or after the Redemption Date or the Repayment
Date, as the case may be); or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver with
respect to such series (or compliance with certain
provisions of this Indenture or certain defaults hereunder
and their consequences) provided for in this Indenture, or
reduce the requirements of Section 1504 for quorum or
voting; or
(3) modify any of the provisions of this Section,
Section 513 or Section 1012, except to increase the required
percentage to effect such action or to provide that certain
other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding
Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 3. Execution of Supplemental Indentures. In
executing, or accepting any supplemental indenture which modifies
this Indenture, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 4. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for
all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 5. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 6. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to
this Article may, and shall, if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole
Amount, if any, Interest and Additional Amounts. The Company
covenants and agrees for the benefit of the Holders of each
series of Securities that it will duly and punctually pay the
principal of (and premium or Make-Whole Amount, if any) and
interest on and any Additional Amounts payable in respect of the
Securities of that series in accordance with the terms of such
series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, any interest due on
and any Additional Amounts payable in respect of Bearer
Securities on or before Maturity, other than Additional Amounts,
if any, payable as provided in Section 1011 in respect of
principal of (or premium or Make-Whole Amount, if any, on) such a
Security, shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are
evidenced thereby as they severally mature. Unless otherwise
specified with respect to Securities of any series pursuant to
Section 301, at the option of the Company, all payments of
principal may be paid by check to the registered Holder of the
Registered Security or other person entitled thereto against
surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If
Securities of a series are issuable only as Registered
Securities, the Company shall maintain in each Place of Payment
for any series of Securities an office or agency where Securities
of that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. If Securities of a
series are issuable as Bearer Securities, the Company will
maintain: (A) in the Borough of Manhattan, The City of New York,
an office or agency where any Registered Securities of that
series may be presented or surrendered for payment or conversion,
where any Registered Securities of that series may be surrendered
for registration or transfer, where Securities of that series may
be surrendered for exchange, where notices and demands to or upon
the Company in respect of the Securities of that series and this
Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for
payment or conversion in the circumstances described in the
following paragraph (and not otherwise); (B) subject to any laws
or regulations applicable thereto, in a Place of Payment for that
series which is located outside the United States, an office or
agency where Securities of that series and related coupons may be
presented and surrendered for payment (including payment of any
Additional Amounts payable on Securities of that series pursuant
to Section 1011) or conversion; provided, however, that if the
Securities of that series are listed on the Luxembourg Stock
Exchange, The International Stock Exchange or any other stock
exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying
Agent for the Securities of that series in Luxembourg, London or
any other required city located outside the United States, as the
case may be, so long as the Securities of that series are listed
on such exchange; and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located
outside the United States an office or agency where any
Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for
exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may
be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of each
such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series
pursuant to Section 1011) or conversion at the offices specified
in the Security, in London, England, and the Company hereby
appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands, and the Company
hereby appoints Trustee its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium, Make-
Whole Amount or interest on or Additional Amounts in respect of
Bearer Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any address in
the United States or by transfer to an account maintained with a
bank located in the United States; provided, however, that, if
the Securities of a series are payable in Dollars, payment of
principal of and any premium and interest on any Bearer Security
(including any Additional Amounts or Make-Whole Amount payable on
Securities of such series pursuant to Section 1011) shall be made
at the office of the Company's Paying Agent in the Borough of
Manhattan, The City of New York, if (but only if) payment in
Dollars of the full amount of such principal, premium, interest,
Additional Amounts or Make-Whole Amount, as the case may be, at
all offices or agencies outside the United States maintained for
the purpose by the Company in accordance with this Indenture, is
illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may from time to time designate one or more
other offices or agencies where the Securities of one or more
series and related coupons, if any, may be presented or
surrendered for any or all of such purposes, and may from time to
time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in accordance
with the requirements set forth above for Securities of any
series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
Unless otherwise specified with respect to any Securities
pursuant to Section 301 with respect to a series of Securities,
the Company hereby designates as a Place of Payment for each
series of Securities the office or agency of the Company in the
Borough of Manhattan, The City of New York, and initially
appoints the Trustee at its Corporate Trust Office as Paying
Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any
series (i) are denominated in a Foreign Currency or (ii) may be
payable in a Foreign Currency, or so long as it is required under
any other provision of the Indenture, then the Company will
maintain with respect to each such series of Securities, or as so
required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying
Agent with respect to any series of any Securities and any
related coupons, it will, on or before each due date of the
principal of (and premium or Make-Whole Amount, if any), or
interest on or Additional Amounts in respect of, any of the
Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or
currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (and
premium or Make-Whole Amount, if any) or interest or Additional
Amounts so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company,
the Trustee shall serve as the Paying Agent and conversion agent
(if any) for the Securities.
Whenever the Company shall have one or more Paying Agents
for any series of Securities and any related coupons, it will, on
or before each due date of the principal of (and premiums or
Make-Whole Amount, if any), or interest on or Additional Amounts
in respect of, any Securities of that series, deposit with a
Payment Agent a sum (in the currency or currencies, currency unit
or units or composite currency or currencies described in the
preceding paragraph) sufficient to pay the principal (and premium
or Make-Whole Amount, if any) or interest or Additional Amounts,
so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal, premium, Make-Whole
Amount or interest or Additional Amounts and (unless such Paying
Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of
principal of (and premium or Make-Whole Amount, if any) or
interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities) in the
making of any such payment of principal (and premium or
Make-Whole Amount, if any) or interest; and
(3) at any time during the continuance of any such
default upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same
terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
Except as otherwise provided in the Securities of any
series, any money deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the
principal of (and premium or Make-Whole Amount, if any) or
interest on, or any Additional Amounts in respect of, any
Security of any series and remaining unclaimed for two years
after such principal (and premiums or Make-Whole Amount, if any),
interest or Additional Amounts has become due and payable shall
be paid to the Company upon Company Request or (if then held by
the Company) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment of such principal
of (and premium or Make-Whole Amount, if any) or interest on, or
any Additional Amounts in respect of, any Security, without
interest thereon, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper,
notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. Limitations on Incurrence of Debt.
(a) The Company will not, and will not permit any
Subsidiary to, incur any Debt if, immediately after giving
effect to the incurrence of such additional Debt and the
application of the proceeds thereof, the aggregate principal
amount of all outstanding Debt of the Company and its
Subsidiaries on a consolidated basis determined in
accordance with GAAP is greater than 60% of the sum of
(without duplication) (i) the Company's Total Assets as of
the end of the calendar quarter covered in the Company's
Annual Report on Form 10-K or Quarterly Report on Form 10-Q,
as the case may be, most recently filed with the Commission
(or, if such filing is not permitted under the Securities
Exchange Act of 1934, with the Trustee) prior to the
incurrence of such additional Debt and (ii) the purchase
price of any real estate assets or mortgages receivable
acquired, and the amount of any securities offering proceeds
received (to the extent such proceeds were not used to
acquire real estate assets or mortgages receivable or used
to reduce Debt), by the Company or any Subsidiary since the
end of such calendar quarter, including those proceeds
obtained in connection with the incurrence of such
additional Debt;
(b) In addition to the limitation set forth in
subsection (a) of this Section 1004, the Company will not,
and will not permit any Subsidiary to, incur any Debt if the
ratio of Consolidated Income Available for Debt Service to
the Annual Service Charge for the four consecutive fiscal
quarters most recently ended prior to the date on which such
additional Debt is to be incurred shall have been less than
1.5:1, on a pro forma basis after giving effect thereto and
to the application of the proceeds therefrom, and calculated
on the assumption that (i) such Debt and any other Debt
incurred by the Company and its Subsidiaries since the first
day of such four-quarter period and the application of the
proceeds therefrom, including to refinance other Debt, had
occurred at the beginning of such period; (ii) the repayment
or retirement of any other Debt by the Company and its
Subsidiaries since the first day of such four-quarter period
had been incurred, repaid or retired at the beginning of
such period (except that, in making such computation, the
amount of Debt under any revolving credit facility shall be
computed based upon the average daily balance of such Debt
during such period); (iii) in the case of Acquired Debt or
Debt incurred in connection with any acquisition since the
first day of such four-quarter period, the related
acquisition had occurred as of the first day of such period
with the appropriate adjustments with respect to such
acquisition being included in such pro forma calculation;
and (iv) in the case of any acquisition or disposition by
the Company or its Subsidiaries of any asset or group of
assets since the first day of such four-quarter period,
whether by merger, stock purchase or sale, or asset purchase
or sale, such acquisition or disposition or any related
repayment of Debt had occurred as of the first day of such
period with the appropriate adjustments with respect to such
acquisition or disposition being included in such pro forma
calculation.
(c) In addition to the limitation set forth in
subsections (a) and (b) of this Section 1004, the Company
will not, and will not permit any Subsidiary to, incur any
Debt secured by any mortgage, lien, charge, pledge,
encumbrance or security interest of any kind upon any of the
property of the Company or any Subsidiary, whether owned on
the date hereof or hereafter acquired, if, immediately after
giving effect to the incurrence of such additional Debt and
the application of the proceeds thereof, the aggregate
principal amount of all outstanding Debt of the Company and
its Subsidiaries on a consolidated basis which is secured by
any mortgage, lien, charge, pledge, encumbrance or security
interest on property of the Company or any Subsidiary is
greater than 40% of the sum of (without duplication) (i) the
Company's Total Assets as of the end of the calendar quarter
covered in the Company's Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, most
recently filed with the Commission (or, if such filing is
not permitted under the Exchange Act, with the Trustee)
prior to the incurrence of such additional Debt and (ii) the
purchase price of any real estate assets or mortgages
receivable acquired, and the amount of any securities
offering proceeds received (to the extent that such proceeds
were not used to acquire real estate assets or mortgages
receivable or used to reduce Debt), by the Company or any
Subsidiary since the end of such calendar quarter, including
those proceeds obtained in connection with the incurrence of
such additional Debt.
(d) The Company and its Subsidiaries may not at any
time own Total Unencumbered Assets equal to less than 150%
of the aggregate outstanding principal amount of the
Unsecured Debt of the Company and its Subsidiaries on a
consolidated basis.
(e) For purposes of this Section 1004 Debt shall be
deemed to be "incurred" by the Company or a Subsidiary
whenever the Company or such Subsidiary shall create,
assume, guarantee or otherwise become liable in respect
thereof.
SECTION 1005. Existence. Subject to Article Eight, the
Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided, however, that
the Company shall not be required to preserve any right or
franchise if it determines that the preservation thereof is no
longer desirable in the conduct of its business and that the loss
thereof is not disadvantageous in any material respect to the
Holders of the Securities.
SECTION 1006. Maintenance of Properties. The Company will
cause all of its properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall
prevent the Company or any Subsidiary from selling or otherwise
disposing for value its properties in the ordinary course of its
business.
SECTION 1007. Insurance. The Company will, and will cause
each of its Subsidiaries to, keep all of its insurable properties
insured against loss or damage at least equal to their then full
insurable value with financially sound and reputable insurance
companies.
SECTION 1008. Payment of Taxes and Other Claims. The
Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon it or
any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or any Subsidiary unless
such lien would not have a material adverse effect upon such
property; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1009. Provision of Financial Information. Whether
or not the Company is subject to Section 13 or 15(d) of the
Exchange Act, the Company will, to the extent permitted under the
Exchange Act, file with the Commission the annual reports,
quarterly reports and other documents which the Company would
have been required to file with the Commission pursuant to such
Sections 13 and 15(d) (the "Financial Statements"), or which the
Company would have been so required if the Company were so
subject, such documents to be filed with the Commission on or
prior to the respective dates (the "Required Filing Dates") by
which the Company is or would have been required so to file such
documents if the Company is or were so subject.
The Company will also in any event (x) within 15 days of
each Required Filing Date (i) transmit by mail to all Holders, as
their names and addresses appear in the Security Register,
without cost to such Holders, copies of the annual reports and
quarterly reports which the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act,
or which the Company would have been so required if the Company
were subject to such Sections, and (ii) file with the Trustee
copies of annual reports, quarterly reports and other documents
which the Company is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act if the
Company were subject to such Sections and (y) if filing such
documents by the Company with the Commission is not permitted
under the Exchange Act, promptly upon written request and payment
of the reasonable cost of duplication and delivery, supply copies
of such documents to any prospective Holder.
SECTION 1010. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each
fiscal year, a brief certificate executed by two officers of the
Company, one of whom will be the principal executive officer,
principal financial officer or principal accounting officer, as
to his or her knowledge of the Company's compliance with all
conditions and covenants under this Indenture and, in the event
of any noncompliance, specifying such noncompliance and the
nature and status thereof. For purposes of this Section 1010,
such compliance shall be determined without regard to any period
of grace or requirement of notice under this Indenture.
SECTION 1011. Additional Amounts. If any Securities of a
series provide for the payment of Additional Amounts, the Company
will pay to the Holder of any Security of such series or any
coupon appertaining thereto Additional Amounts as may be
specified as contemplated by Section 301. Whenever in this
Indenture there is mentioned, in any context except in the case
of Section 502(1), the payment of the principal or of any
premium, Make-Whole Amount or interest on, or in respect of, any
Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of
any series, such mention shall be deemed to include mention of
the payment of Additional Amounts provided by the terms of such
series established pursuant to Section 301 to the extent that, in
such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section
301, if the Securities of a series provide for the payment of
Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to that series of Securities (or if the
Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any
premium is made), and at least 10 days prior to each date of
payment of principal and any premium or Make-Whole Amount or
interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and
any premium or interest on the Securities of that series shall be
made to Holders of Securities of that series or any related
coupons who are not United States persons without withholding for
or on account of any tax, assessment or other governmental charge
described in the Securities of or within the series. If any such
withholding shall be required, then such Officers' Certificate
shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities of that
series or related coupons and the Company will pay to the Trustee
or such Paying Agent the Additional Amounts required by the terms
of such Securities. In the event that the Trustee or any Paying
Agent, as the case may be, shall not so receive the above
mentioned certificate, then the Trustee or such Paying Agent
shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or
interest with respect to any Securities of a series or related
coupons until it shall have received a certificate advising
otherwise and (ii) to make all payments of principal and interest
with respect to the Securities of a series or related coupons
without withholding or deductions until otherwise advised. The
Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against any loss, liability or
expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or
omitted by any of them or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on
the Company's not furnishing such an Officers' Certificate.
SECTION 1012. Waiver of Certain Covenants. The Company may
omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1004 to 1009,
inclusive, and with any other term, provision or condition with
respect to the Securities of any series specified in accordance
with Section 301 (except any such term, provision or condition
which could not be amended without the consent of all Holders of
Securities of such series pursuant to Section 902), if before or
after the time for such compliance the Holders of at least a
majority in principal amount of all outstanding Securities of
such series, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such covenant
or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and
effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities
of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company of less than all of the
Securities of any series, the Company shall, at least 45 days
prior to the giving of the notice of redemption in Section 1104
(unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal
amount of Securities of such series to be redeemed.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series issued
on the same day with the same terms are to be redeemed, the
particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series issued on such date
with the same terms not previously called for redemption, by such
method as the Trustee shall deem fair and appropriate and which
may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount
of Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the
Security Registrar (if other than itself) in writing of the
Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security redeemed or
to be redeemed only in part, to the portion of the principal
amount of such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption
shall be given in the manner provided in Section 106, not less
than 30 days nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified by the terms of such series
established pursuant to Section 301, to each Holder of Securities
to be redeemed, but failure to give such notice in the manner
herein provided to the Holder of any Security designated for
redemption as a whole or in part, or any defect in the notice to
any such Holder, shall not affect the validity of the proceedings
for the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder
receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
and Additional Amounts, if any;
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amount) of the
particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender of
such Security, the holder will receive, without a charge, a
new Security or Securities of authorized denominations for
the principal amount thereof remaining unredeemed;
(5) that on the Redemption Date the Redemption Price
and accrued interest to the Redemption Date payable as
provided in Section 1106, if any, will become due and
payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date;
(6) the Place or Places of Payment where such
Securities, together in the case of Bearer Securities with
all coupons appertaining thereto, if any, maturing after the
Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any, or for
conversion;
(7) that the redemption is for a sinking fund, if such
is the case;
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all coupons maturing
subsequent to the date fixed for redemption or the amount of
any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory
to the Company, the Trustee for such series and any Paying
Agent is furnished;
(9) if Bearer Securities of any series are to be
redeemed and any Registered Securities of such series are
not to be redeemed, and if such Bearer Securities may be
exchanged for Registered Securities not subject to the
redemption on this Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Company,
on which such exchanges may be made;
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who
desires to convert Securities for redemption must satisfy
the requirements for conversion contained in such
Securities, the then existing conversion price or rate, and
the date and time when the option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee
in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price. At least one
Business Day prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, which it may not do in
the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an
amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment
Date) accrued interest on, all the Securities or portions thereof
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified
in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) (together with
accrued interest, if any, to the Redemption Date), and from and
after such date (unless the Company shall default in the payment
of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided
below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the
Redemption Date, such Security shall be paid by the Company at
the Redemption Price, together with accrued interest, if any, to
the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office
or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender
of coupons for such interest; and provided further that,
installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable
to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions
of Section 307.
If any Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons maturing after the
Redemption Date, such Security may be paid after deducting from
the Redemption Price an amount equal to the face amount of all
such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of
which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United
States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium
of Make-Whole Amount, if any) shall, until paid, bear interest
from the Redemption Date at the rate borne by the Security.
SECTION 1107. Securities Redeemed in Part. Any Security
which is to be redeemed only in part (pursuant to the provisions
of this Article or of Article Twelve) shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without
service charge a new Security or Securities of the same series,
of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the
retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such
series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as
a "mandatory sinking fund payment," and any payment in excess of
such minimum amount provided for by the terms of such Securities
of any series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may
be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. The Company may, in satisfaction of all or any part
of any mandatory sinking fund payment with respect to the
Securities of a series, (1) deliver Outstanding Securities of
such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (2) apply as a
credit Securities of such series which have been redeemed either
at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities,
as provided for by the terms of such Securities, or which have
otherwise been acquired by the Company; provided that such
Securities so delivered or applied as a credit have not been
previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the applicable
Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
Securities of any series, the Company will deliver to the Trustee
an Officers' Certificate specifying the amount of the next
ensuing mandatory sinking fund payment for that series pursuant
to the terms of that series, the portion thereof, if any, which
is to be satisfied by payment of cash in the currency or
currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series) and the portion thereof, if any, which
is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202, and the optional amount, if any,
to be added in cash to the next ensuing mandatory sinking fund
payment, and will also deliver to the Trustee any Securities to
be so delivered and credited. If such Officers' Certificate
shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Company shall
thereupon be obligated to pay the amount therein specified. Not
less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103
and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the
option of Holders thereof shall be made in accordance with the
terms of such Securities, if any, and (except as otherwise
specified by the terms of such series established pursuant to
Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of
the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal
amount thereof, together with interest, if any, thereon accrued
to the Repayment Date specified in or pursuant to the terms of
such Securities. The Company covenants that on or before the
Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an
amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series)
sufficient to pay the principal (or, if so provided by the terms
of the Securities of any series, a percentage of the principal)
of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions
thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will
contain an "Option to Elect Repayment" form on the reverse of
such Securities. In order for any Security to be repaid at the
option of the Holder, the Trustee must receive at the Place of
Payment therefor specified in the terms of such Security (or at
such other place or places of which the Company shall from time
to time notify the Holders of such Securities) not earlier than
60 days nor later than 30 days prior to the Repayment Date (1)
the Security so providing for such repayment together with the
"Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly
authorized in writing) or (2) a telegram, telex, facsimile
transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc.
("NASD"), or a commercial bank or trust company in the United
States setting forth the name of the Holder of the Security, the
principal amount of the Security, the principal amount of the
Security to be repaid, the CUSIP number, if any, or a description
of the tenor and terms of the Security, a statement that the
option to elect repayment is being exercised thereby and a
guarantee that the Security to be repaid, together with the duly
completed form entitled "Option to Elect Repayment" on the
reverse of the Security, will be received by the Trustee not
later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; provided,
however, that such telegram, telex, facsimile transmission or
letter shall only be effective if such Security and form duly
completed are received by the Trustee by such fifth Business Day.
If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of
the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be
issued to the Holder for the portion of the principal amount of
such Security surrendered that is not to be repaid, must be
specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid
in part if, following such repayment, the unpaid principal amount
of such Security would be less than the minimum authorized
denomination of Securities of or within the series of which such
Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at
the option of the Holder thereof, exercise of the repayment
option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable. If Securities of any series providing
for repayment at the option of the Holders thereof shall have
been surrendered as provided in this Article and as provided by
or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the
Repayment Date therein specified, and on and after such Repayment
Date (unless the Company shall default in the payment of such
Securities on such Repayment Date) such Securities shall, if the
same were interest-bearing, cease to bear interest and the
coupons for such interest appertaining to any Bearer Securities
so to be repaid, except to the extent provided below, shall be
void. Upon surrender of any such Security for repayment in
accordance with such provisions, together with all coupons, if
any, appertaining thereto maturing after the Repayment Date, the
principal amount of such Security so to be repaid shall be paid
by the Company, together with accrued interest, if any, to the
Repayment Date; provided, however, that coupons whose Stated
Maturity is on or prior to the Repayment Date shall be payable
only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon
presentation and surrender of such coupons; and provided further
that, in the case of Registered Securities, installments of
interest, if any, whose Stated Maturity is on or prior to the
Repayment Date shall be payable (but without interest thereon,
unless the Company shall default in the payment thereof) to the
Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions
of Section 307.
If any Bearer Security surrendered for repayment shall not
be accompanied by all appurtenant coupons maturing after the
Repayment Date, such Security may be paid after deducting from
the amount payable therefor as provided in Section 1302 an amount
equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there shall be furnished to them such
security or indemnity as they may require to save each of them
and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder
shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable
only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such
principal amount (together with interest, if any, thereon accrued
to such Repayment Date) shall, until paid, bear interest from the
Repayment Date at the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender
of any Registered Security which is to be repaid in part only,
the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge
and at the expense of the Company, a new Registered Security or
Securities of the same series, of any authorized denomination
specified by the Holder, in an aggregate principal amount equal
to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article, Company's Option to
Effect Defeasance or Covenant Defeasance. If, pursuant to
Section 301, provision is made for either or both (a) defeasance
of the Securities of or within a series under Section 1402 or (b)
covenant defeasance of the Securities of or within a series under
Section 1403 to be applicable to the Securities of any series,
then the provisions of such Section or Sections, as the case may
be, together with the other provisions of this Article (with such
modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such
Securities and any coupons appertaining thereto, and the Company
may at its option by Board Resolution, at any time, with respect
to such Securities and any coupons appertaining thereto, elect to
defease such Outstanding Securities and any coupons appertaining
thereto pursuant to Section 1402 (if applicable) or Section 1403
(if applicable) upon compliance with the conditions set forth
below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with
respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with
respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented
by such Outstanding Securities and any coupons appertaining
thereto, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in clauses (A) and (B) below, and to
have satisfied all of its other obligations under such Securities
and any coupons appertaining thereto and this Indenture insofar
as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 1404 and
as more fully set forth in such Section, payments in respect of
the principal of (and premium or Make-Whole Amount, if any) and
interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Company's obligations
with respect to such Securities under Sections 305, 306, 1002 and
1003 and with respect to the payment of Additional Amounts, if
any, on such Securities as contemplated by Section 1011, (C) the
rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article. Subject to compliance with this
Article Fourteen, the Company may exercise its option under this
Section notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any coupons
appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's
exercise of the above option applicable to this Section with
respect to any Securities of or within a series, the Company
shall be released from its obligations under Sections 1004 to
1009, inclusive, and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such
Outstanding Securities and any coupons appertaining thereto on
and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such
Securities and any coupons appertaining thereto shall thereafter
be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with Sections 1004
to 1009, inclusive, or such other covenant, but shall continue to
be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any coupons appertaining
thereto, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set
forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of
reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to
comply shall not constitute a default or an Event of Default
under Section 501(4), 501(5), 501(9) or otherwise, as the case
may be, but, except as specified above, the remainder of this
Indenture and such Securities and any coupons appertaining
thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance. The following shall be the conditions to application
of Section 1402 or Section 1403 to any Outstanding Securities of
or within a series and any coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 607 who shall agree
to comply with the provisions of this Article Fourteen
applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the
Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any coupons
appertaining thereto are then specified as payable at Stated
Maturity, or (2) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on
the basis of the currency, currencies or currency unit in
which such Securities and coupons appertaining thereto are
then specified as payable at Stated Maturity) which through
the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not
later than one day before the due date of any payment of
principal of (and premium or Make-Whole Amount, if any) and
interest, if any, on such Securities and any coupons
appertaining thereto, money in an amount, or (3) a
combination thereof in an amount, sufficient, without
consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, (i) the
principal of (and premium of Make-Whole Amount, if any) and
interest, if any, on such Outstanding Securities and any
coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest and (ii)
any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any coupons
appertaining thereto on the day on which such payments are
due and payable in accordance with the terms of this
Indenture and of such Securities and any coupons
appertaining thereto; provided, that the Trustee shall have
been irrevocably instructed to apply such money or the
proceeds of such Government Obligations to said payments
with respect to such Securities. Before such a deposit, the
Company may give to the Trustee, in accordance with Section
1102 hereof, a notice of its election to redeem all or any
portion of such Outstanding Securities at a future date in
accordance with the terms of the Securities of such series
and Article Eleven hereof, which notice shall be
irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is
bound (and shall not cause the Trustee to have a conflicting
interest pursuant to Section 310(b) of the TIA with respect
to any Security of the Company).
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to such Securities and any coupons appertaining
thereto shall have occurred and be continuing on the date of
such deposit or, insofar as Sections 501(7) and 501(8) are
concerned, at any time during the period ending on the 91st
day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company has received from, or
there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income
tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding
Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance
under Section 1402 or the covenant defeasance under Section
1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result
of a deposit pursuant to subsection (a) above and the
related exercise of the Company's option under Section 1402
or Section 1403 (as the case may be), registration is not
required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds
representing such deposit or by the Trustee for such trust
funds or (ii) all necessary registrations under said Act
have been effected.
(g) After the 91st day following the deposit, the
trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally.
(h) Notwithstanding any other provisions of this
Section, such defeasance or covenant defeasance shall be
effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions. Subject to the
provisions of the last paragraph of Section 1003, all money and
Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1405, the "Trustee")
pursuant to Section 1404 in respect of any Outstanding Securities
of any series and any coupons appertaining thereto shall be held
in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any coupons appertaining
thereto and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of
such Securities and any coupons appertaining thereto of all sums
due and to become due thereon in respect of principal (and
premium or Make-Whole Amount, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other
funds except to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in
Section 1404(a) has been made, (a) the Holder of a Security in
respect of which such deposit was made is entitled to, and does,
elect pursuant to Section 301 or the terms of such Security to
receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in
respect of such Security, or (b) a Conversion Event occurs in
respect of the currency or currency unit in which the deposit
pursuant to Section 1404(a) has been made, the indebtedness
represented by such Security and any coupons appertaining thereto
shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium or
Make-Whole Amount, if any), and interest, if any, on such
Security as the same becomes due out of the proceeds yielded by
converting (from time to time as specified below in the case of
any such election) the amount or other property deposited in
respect of such Security into the currency or currency unit in
which such Security becomes payable as a result of such election
or Conversion Event based on the applicable market exchange rate
for such currency or currency unit in effect on the second
Business Day prior to each payment date, except, with respect to
a Conversion Event, for such currency or currency unit in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the
Government Obligations deposited pursuant to Section 1404 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of
the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or Government Obligations (or
other property and any proceeds therefrom) held by it as provided
in Section 1404 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited
to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at
any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of Securities of
such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of any series for any purpose
specified in Section 1501, to be held at such time and at
such place in the Borough of Manhattan, the City of New
York, or in London as the Trustee shall determine. Notice
of every meeting of Holders of Securities of any series,
setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a
Board Resolution, or the Holders of at least 10% in
principal amount of the Outstanding Securities of any series
shall have requested the Trustee to call a meeting of the
Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth
in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first
publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series
in the amount above specified, as the case may be, may
determine the time and the place in the Borough of
Manhattan, The City of New York, or in London for such
meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this
Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be
entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series
shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and
any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote
a majority in principal amount of the Outstanding Securities of a
series shall constitute a quorum for a meeting of Holders of
Securities of such series; provided, however, that if any action
is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by
the Holders of not less than a specified percentage in principal
amount of the Outstanding Securities of a series, the Persons
entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series shall constitute a
quorum. In the absence of a quorum within 30 minutes after the
time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series,
be dissolved. In any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less
than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of any
adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be
adopted by the affirmative vote of the Holders of a majority in
principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action
which this Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with
this Section shall be binding on all the Holders of Securities of
such series and the related coupons, whether or not present or
represented at the meeting.
Notwithstanding the foregoing provisions of this Section
1504, if any action is to be taken at a meeting of Holders of
Securities of any series with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action
that this Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the
Holders of such series and one or more additional series:
(i) there shall be no minimum quorum requirement
for such meeting; and
(ii) the principal amount of the Outstanding
Securities of such series that vote in favor of such
request, demand, authorization, direction, notice, consent,
waiver or other action shall be taken into account in
determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been
made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any provisions of this Indenture,
the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Holders of Securities of a
series in regard to proof of the holding of Securities of
such series and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by
any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the
Person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other
proof.
(b) The Trustee shall, by an instrument in writing
appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Company or by Holders
of Securities as provided in Section 1502(b), in which case
the Company or the Holders of Securities of or within the
series that called the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such
series represented at the meeting.
(c) At any meeting each Holder of a Security of such
series or proxy shall be entitled to one vote for each
$1,000 principal amount of the Outstanding Securities of
such series held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series
duly called pursuant to Section 1502 at which a quorum is
present may be adjourned from time to time by Persons
entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the
meeting, and the meeting may be held as so adjourned without
further notice.
SECTION 1506. Counting Votes and Recording Action of
Meetings. The vote upon any resolution submitted to any meeting
of Holders of Securities of any series shall be by written
ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives
by proxy and the principal amounts and series numbers of the
Outstanding Securities of such series held or represented by
them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least
in duplicate, of the proceedings of each meeting of Holders of
Securities of any Series shall be prepared by the secretary of
the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the
meeting and showing that said notice was given as provided in
Section 1502 and,if applicable, Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one such copy shall be delivered
to the Company and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at
the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders. Any
request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or
taken by a specified percentage in principal amount of the
Holders of any or all series may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by
such specified percentage of Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee. Proof of execution
of any instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to
Article Six) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Article.
SECTION 1508. Proof of Execution of Instruments. Subject
to Article Six, the execution of any instrument by a Holder or
his agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the
Trustee in such manner as shall be satisfactory to the Trustee.
* * * * *
This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
WELLSFORD RESIDENTIAL PROPERTY TRUST
By: /s/ Gregory F. Hughes
-----------------------------
Name: Gregory F. Hughes
Title: Vice President - Chief
Financial Officer
[SEAL]
Attest:
/s/ Steven Scheinfeld
- -----------------------------
Name: Steven Scheinfeld
Title:
UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee
By:/s/ Cynthia Chaney
[SEAL] Name: Cynthia Chaney
Title: Assistant Vice President
Attest:
/s/ Patricia Stermer
- ------------------------------
Name: Patricia Stermer
Title: Assistant Vice President<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 28th day of October , 1996, before me personally
came Gregory F. Hughes to me known, who, being by me duly sworn,
did depose and say that he/she works at 610 Fifth Avenue, New York,
NY, that he/she is Chief Financial Officer of WELLSFORD
RESIDENTIAL PROPERTY TRUST, one of the entities described
in and which executed the foregoing instrument; that
he/she knows the seal of said entity; that the seal affixed
to said instrument is such seal; that it was so affixed by
authority of the Board of Trustees of said entity, and that
he/she signed his/her name thereto by like authority.
[Notarial Seal]
/s/ Joanne D. Picarelli
-----------------------------
Notary Public
Commission Expires:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 24th day of October, 1996, before me personally came
Cynthia Chaney to me known, who, being by me duly sworn, did
depose and say that he/she resides at 807 E. 45 Street, Brooklyn,
New York, that he/she is Assistant Vice President of UNITED
STATES TRUST COMPANY OF NEW YORK, one of the entities described
in and which executed the foregoing instrument; that he/she knows
the seal of said entity; that the seal affixed to said instrument
is such seal; that it was so affixed by authority of the Board of
Directors of said entity, and that he/she signed his/her name
thereto by like authority.
[Notarial Seal]
/s/ Denise P. Lopex
-------------------------
Notary Public
Commission Expires
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, as of the date hereof, and except
as set forth below, the above-captioned Securities held by you
for our account (i) are owned by person(s) that are not citizens
or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of
its source ("United States person(s)"), (ii) are owned by United
States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in
United States Treasury Regulations Section 1.165-12(c)(1)(v) are
herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through
such United States financial institutions on the date hereof (and
in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its
agent, that you may advise Wellsford Residential Property Trust
or its agent that such financial institution will provide a
certificate within a reasonable time stating that it agrees to
comply with the requirements of Section 165(j)(3)(A), (B) or (C)
of the United States Internal Revenue Code of 1986, as amended,
and the regulations thereunder, or (iii) are owned by a financial
institution for purposes of resale during the restricted period
(as defined in the United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and such financial institution described
in clause (iii) above (whether or not also described in clause
(i) or (ii)), certifies that it has not acquired the Securities
for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and
its "possessions" include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your
certification relating to the above-captioned Securities held by
you for our account in accordance with your Operating Procedures
if any applicable statement herein is not correct on such date,
and in the absence of any such notification it may be assumed
that this certification applies as of such date.
This certificate excepts and does not relate to
[U.S.$]______________ of such interest in the above-captioned
Securities in respect of which we are not able to certify and as
to which we understand an exchange for an interest in a Permanent
Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot
be made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated:__________________________, 19__
[To be dated no earlier than the 15th day
prior to the earlier of (i) the Exchange
Date or (ii) the relevant Interest Payment
Date occurring prior to the Exchange Date,
as applicable]
[Name of Person Making
Certification]
__________________________________
(Authorized Signatory)
Name:
Title:
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex
or by electronic transmission from each of the persons appearing
in our records as persons entitled to a portion of the principal
amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$]
__________________ principal amount of the above-captioned
Securities (i) is owned by person(s) that are not citizens or
residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is
subject to United States Federal income taxation regardless of
its source ("United States person(s)"), (ii) is owned by United
States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in
United States Treasury Regulations Section 1.165-12(c)(1)(v) are
herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through
such United States financial institutions on the date hereof (and
in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may
advise Wellsford Residential Property Trust or its agent that
such financial institution will provide a certificate within a
reasonable time stating that it agrees to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by a financial institution for
purposes of resale during the restricted period (as defined in
United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)), and that such financial institutions described
in clause (iii) above (whether or not also described in clause
(i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and
its "possessions" including Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any
interest) any portion of the temporary global Security
representing the above-captioned Securities excepted in the
above-referenced certificates of Member Organizations and (ii) as
of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements
made by such Member Organizations with respect to any portion of
the part submitted herewith for exchange (or, if relevant,
collection of any interest) are no longer true and cannot be
relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Dated: ________________________, 19__
[To be dated no earlier than the
earlier of the Exchange Date or the
relevant Interest Payment Date occur-
ring prior to the Exchange Date, as
applicable]
[Morgan Guaranty Trust
Company of New York,
Brussels Office,] as
Operator of the
Euroclear System
[Cedel S.A.]
By: ______________________________
<PAGE>
EXHIBIT 4.3
=================================================================
WELLSFORD RESIDENTIAL PROPERTY TRUST
AND
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
Indenture
Dated as of October 25, 1996
Senior Securities
=================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION . . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions . . . . . . . . . . . . . . . . 1
"Acquired Debt". . . . . . . . . . . . . . . . . . . 2
"Act". . . . . . . . . . . . . . . . . . . . . . . . 2
"Additional Amounts" . . . . . . . . . . . . . . . . 2
"Affiliate". . . . . . . . . . . . . . . . . . . . . 2
"Annual Service Charge". . . . . . . . . . . . . . . 2
"Authenticating Agent" . . . . . . . . . . . . . . . 2
"Authorized Newspaper" . . . . . . . . . . . . . . . 2
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . 3
"Bearer Security". . . . . . . . . . . . . . . . . . 3
"Board of Trustees". . . . . . . . . . . . . . . . . 3
"Board Resolution" . . . . . . . . . . . . . . . . . 3
"Business Day,". . . . . . . . . . . . . . . . . . . 3
"Capital Stock". . . . . . . . . . . . . . . . . . . 3
"CEDEL". . . . . . . . . . . . . . . . . . . . . . . 3
"Commission" . . . . . . . . . . . . . . . . . . . . 3
"Common Shares". . . . . . . . . . . . . . . . . . . 3
"Company". . . . . . . . . . . . . . . . . . . . . . 3
"Company Request" and "Company Order". . . . . . . . 4
"Consolidated Income Available for Debt Service" . . 4
"Conversion Event" . . . . . . . . . . . . . . . . . 4
"Corporate Trust Office" . . . . . . . . . . . . . . 4
"corporation". . . . . . . . . . . . . . . . . . . . 4
"coupon" . . . . . . . . . . . . . . . . . . . . . . 4
"Custodian". . . . . . . . . . . . . . . . . . . . . 4
"Debt" . . . . . . . . . . . . . . . . . . . . . . . 4
"Defaulted Interest" . . . . . . . . . . . . . . . . 5
"Disqualified Stock" . . . . . . . . . . . . . . . . 5
"Dollar" or "$". . . . . . . . . . . . . . . . . . . 5
"DTC". . . . . . . . . . . . . . . . . . . . . . . . 5
"Earnings from Operations" . . . . . . . . . . . . . 5
"ECU". . . . . . . . . . . . . . . . . . . . . . . . 5
"Encumbrance". . . . . . . . . . . . . . . . . . . . 5
"European Communities" . . . . . . . . . . . . . . . 5
"European Monetary System" . . . . . . . . . . . . . 6
"Event of Default" . . . . . . . . . . . . . . . . . 6
"Foreign Currency" . . . . . . . . . . . . . . . . . 6
"GAAP" . . . . . . . . . . . . . . . . . . . . . . . 6
"Government Obligations" . . . . . . . . . . . . . . 6
"Holder" . . . . . . . . . . . . . . . . . . . . . . 6
"Indenture". . . . . . . . . . . . . . . . . . . . . 6
"Indexed Security" . . . . . . . . . . . . . . . . . 7
"interest" . . . . . . . . . . . . . . . . . . . . . 7
"Interest Payment Date". . . . . . . . . . . . . . . 7
"Make-Whole Amount". . . . . . . . . . . . . . . . . 7
"Maturity" . . . . . . . . . . . . . . . . . . . . . 7
"Officers' Certificate". . . . . . . . . . . . . . . 7
"Opinion of Counsel" . . . . . . . . . . . . . . . . 7
"Original Issue Discount Security" . . . . . . . . . 8
"Outstanding," . . . . . . . . . . . . . . . . . . . 8
"Paying Agent" . . . . . . . . . . . . . . . . . . . 9
"Person" . . . . . . . . . . . . . . . . . . . . . . 9
"Place of Payment" . . . . . . . . . . . . . . . . . 9
"Predecessor Security" . . . . . . . . . . . . . . . 9
"Preferred Shares" . . . . . . . . . . . . . . . . . 9
"Redemption Date". . . . . . . . . . . . . . . . . . 10
"Redemption Price" . . . . . . . . . . . . . . . . . 10
"Registered Security". . . . . . . . . . . . . . . . 10
"Regular Record Date". . . . . . . . . . . . . . . . 10
"Repayment Date" . . . . . . . . . . . . . . . . . . 10
"Repayment Price". . . . . . . . . . . . . . . . . . 10
"Responsible Officer". . . . . . . . . . . . . . . . 10
"Securities Act" . . . . . . . . . . . . . . . . . . 10
"Security" . . . . . . . . . . . . . . . . . . . . . 10
"Security Register" and "Security Registrar" . . . . 10
"Significant Subsidiary" . . . . . . . . . . . . . . 10
"Special Record Date". . . . . . . . . . . . . . . . 10
"Stated Maturity". . . . . . . . . . . . . . . . . . 11
"Statistical Release". . . . . . . . . . . . . . . . 11
"Subsidiary" . . . . . . . . . . . . . . . . . . . . 11
"Total Assets" . . . . . . . . . . . . . . . . . . . 11
"Total Unencumbered Assets". . . . . . . . . . . . . 11
"Trust Indenture Act" or "TIA" . . . . . . . . . . . 11
"Trustee". . . . . . . . . . . . . . . . . . . . . . 11
"Undepreciated Real Estate Assets" . . . . . . . . . 11
"United States". . . . . . . . . . . . . . . . . . . 12
"United States person" . . . . . . . . . . . . . . . 12
"Unsecured Debt" . . . . . . . . . . . . . . . . . . 12
"Yield to Maturity". . . . . . . . . . . . . . . . . 12
SECTION 102. Compliance Certificates and Opinions . . . . 12
SECTION 103. Form of Documents Delivered to Trustee . . . 13
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . 13
SECTION 105. Notices, etc., to Trustee and Company. . . . 15
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . 15
SECTION 107. Effect of Headings and Table of Contents . . 16
SECTION 108. Successors and Assigns . . . . . . . . . . . 17
SECTION 109. Separability Clause. . . . . . . . . . . . . 17
SECTION 110. Benefits of Indenture. . . . . . . . . . . . 17
SECTION 111. No Personal Liability. . . . . . . . . . . . 17
SECTION 112. Governing Law. . . . . . . . . . . . . . . . 17
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . 17
ARTICLE TWO SECURITIES FORMS. . . . . . . . . . . . . . . . 19
SECTION 201. Forms of Securities. . . . . . . . . . . . . 19
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . 19
SECTION 203. Securities Issuable in Global Form. . . . . 19
ARTICLE THREE THE SECURITIES. . . . . . . . . . . . . . . . . 20
SECTION 301. Amount Unlimited; Issuable in Series . . . . 20
SECTION 302. Denominations. . . . . . . . . . . . . . . . 25
SECTION 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . 25
SECTION 304. Temporary Securities . . . . . . . . . . . . 27
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . 30
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . 33
SECTION 307. Payment of Interest; Interest
Rights Preserved . . . . . . . . . . . . . 34
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . 36
SECTION 309. Cancellation . . . . . . . . . . . . . . . . 37
SECTION 310. Computation of Interest. . . . . . . . . . . 38
ARTICLE FOUR SATISFACTION AND DISCHARGE. . . . . . . . . . . 39
SECTION 401. Satisfaction and Discharge of Indenture. . . 39
SECTION 402. Application of Trust Funds . . . . . . . . . 40
ARTICLE FIVE REMEDIES. . . . . . . . . . . . . . . . . . . . 40
SECTION 501. Events of Default. . . . . . . . . . . . . . 40
SECTION 502. Acceleration of Maturity; Rescission
and Annulment. . . . . . . . . . . . . . . 42
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . 44
SECTION 504. Trustee May File Proofs of Claim . . . . . . 44
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons. . . . 45
SECTION 506. Application of Money Collected . . . . . . . 45
SECTION 507. Limitation on Suits. . . . . . . . . . . . . 46
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium or Make-Whole
Amount, if any, Interest and Additional
Amounts. . . . . . . . . . . . . . . . . . 47
SECTION 509. Restoration of Rights and Remedies . . . . . 47
SECTION 510. Rights and Remedies Cumulative . . . . . . . 47
SECTION 511. Delay or Omission Not Waiver . . . . . . . . 47
SECTION 512. Control by Holders of Securities . . . . . . 47
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . 48
SECTION 514. Waiver of Usury, Stay or Extension Laws. . . 48
SECTION 515. Undertaking for Costs. . . . . . . . . . . . 48
ARTICLE SIX THE TRUSTEE . . . . . . . . . . . . . . . . . . 49
SECTION 601. Notice of Defaults . . . . . . . . . . . . . 49
SECTION 602. Certain Rights of Trustee. . . . . . . . . . 49
SECTION 603. Not Responsible for Recitals or Issuance
of Securities. . . . . . . . . . . . . . . 51
SECTION 604. May Hold Securities. . . . . . . . . . . . . 51
SECTION 605. Money Held in Trust. . . . . . . . . . . . . 51
SECTION 606. Compensation and Reimbursement . . . . . . . 51
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests. . . . . . . . . . . 52
SECTION 608. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . . . 52
SECTION 609. Acceptance of Appointment by Successor . . . 54
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . 55
SECTION 611. Appointment of Authenticating Agent. . . . . 55
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY 57
SECTION 701. Disclosure of Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 702. Reports by Trustee . . . . . . . . . . . . . 57
SECTION 703. Reports by Company . . . . . . . . . . . . . 57
SECTION 704. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . 58
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE 58
SECTION 801. Consolidations and Mergers of Company and
Sales, Leases and Conveyances Permitted
Subject to Certain Conditions. . . . . . . 58
SECTION 802. Rights and Duties of Successor
Corporation . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 803. Officers' Certificate and Opinion of
Counsel.. . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE NINE SUPPLEMENTAL INDENTURES . . . . . . . . . . . . 60
SECTION 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . 60
SECTION 902. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 903. Execution of Supplemental Indentures . . . . 62
SECTION 904. Effect of Supplemental Indentures. . . . . . 63
SECTION 905. Conformity with Trust Indenture Act. . . . . 63
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . 63
ARTICLE TEN COVENANTS . . . . . . . . . . . . . . . . . . . 63
SECTION 1001. Payment of Principal, Premium or Make-
Whole Amount, if any, Interest and
Additional Amounts . . . . . . . . . . . 63
SECTION 1002. Maintenance of Office or Agency. . . . . . 64
SECTION 1003. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . 65
SECTION 1004. Limitations on Incurrence of Debt. . . . . 67
SECTION 1005. Existence. . . . . . . . . . . . . . . . . 68
SECTION 1006. Maintenance of Properties. . . . . . . . . 69
SECTION 1007. Insurance. . . . . . . . . . . . . . . . . 69
SECTION 1008. Payment of Taxes and Other Claims. . . . . 69
SECTION 1009. Provision of Financial Information . . . . 69
SECTION 1010. Statement as to Compliance . . . . . . . . 70
SECTION 1011. Additional Amounts . . . . . . . . . . . . 70
SECTION 1012. Waiver of Certain Covenants. . . . . . . . 71
ARTICLE ELEVEN REDEMPTION OF SECURITIES. . . . . . . . . . . . 71
SECTION 1101. Applicability of Article . . . . . . . . . 71
SECTION 1102. Election to Redeem; Notice to Trustee. . . 71
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . 72
SECTION 1104. Notice of Redemption . . . . . . . . . . . 72
SECTION 1105. Deposit of Redemption Price. . . . . . . . 73
SECTION 1106. Securities Payable on Redemption Date. . . 74
SECTION 1107. Securities Redeemed in Part. . . . . . . . 75
ARTICLE TWELVE SINKING FUNDS . . . . . . . . . . . . . . . . . 75
SECTION 1201. Applicability of Article . . . . . . . . . 75
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities. . . . . . . . . . . . . 75
SECTION 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . 75
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS . . . . 76
SECTION 1301. Applicability of Article . . . . . . . . . 76
SECTION 1302. Repayment of Securities. . . . . . . . . . 76
SECTION 1303. Exercise of Option . . . . . . . . . . . . 76
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable . . . . . . . . . 77
SECTION 1305. Securities Repaid in Part. . . . . . . . . 78
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE . . . . 78
SECTION 1401. Applicability of Article, Company's
Option to Effect Defeasance or
Covenant Defeasance. . . . . . . . . . . 78
SECTION 1402. Defeasance and Discharge . . . . . . . . . 79
SECTION 1403. Covenant Defeasance. . . . . . . . . . . . 79
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions . . . . . . . . 82
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES. . . . . 83
SECTION 1501. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . . . 83
SECTION 1502. Call, Notice and Place of Meetings . . . . 83
SECTION 1503. Persons Entitled to Vote at Meetings . . . 84
SECTION 1505. Determination of Voting Rights;
Conduct and Adjournment of Meetings. . . 85
SECTION 1506. Counting Votes and Recording Action of
Meetings. . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1507. Evidence of Action Taken by Holders. . . . 86
SECTION 1508. Proof of Execution of Instruments. . . . . 86
<PAGE>
WELLSFORD RESIDENTIAL PROPERTY
Reconciliation and tie between Trust Indenture Act of 1939, as
amended (the "1939 Act"), and Indenture, dated as of October 25,
1996
Trust Indenture Act Section Indenture Section
Section 310(a)(1). . . . . . . . . . . . . . . . 607(a)
(a)(2). . . . . . . . . . . . . . . . 607(a)
(b) . . . . . . . . . . . . . . . . . 607(b), 608
Section 312(c) . . . . . . . . . . . . . . . . . 701
Section 314(a) . . . . . . . . . . . . . . . . . 703
(a)(4).. . . . . . . . . . . . . . . 1011
(c)(1). . . . . . . . . . . . . . . . 102
(c)(2). . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . 102
Section 315(b) . . . . . . . . . . . . . . . . . 601
Section 316(a) (last sentence) . . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . 508
Section 317(a)(1). . . . . . . . . . . . . . . . 503
(a)(2). . . . . . . . . . . . . . . . 504
Section 318(a) . . . . . . . . . . . . . . . . . 112
(c) . . . . . . . . . . . . . . . . . 112
_______________________________
NOTE: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of
the 1939 Act, which provides that the provisions of
Section 310 to and including 317 of the 1939 Act are a
part of and govern every qualified indenture, whether or
not physically contained therein.
