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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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): September 25, 1998
CARRAMERICA REALTY CORPORATION
(Exact name of registrant as specified in its charter)
Maryland 1-11706 52-1796339
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification Number)
CARRAMERICA REALTY, L.P.
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(Exact name of registrant as specified in its charter)
Delaware 000-22741 52-1976308
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification Number)
1850 K Street, N.W., Suite 500
Washington, D.C. 20006
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(Address of principal executive offices (Zip Code)
of both registrants)
Registrants' telephone number, including area code:
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(202) 729-7500
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CARRAMERICA REALTY CORPORATION
Item 5. Other Events
On September 25, 1998, CarrAmerica Realty Corporation entered into an
Underwriting Agreement with Goldman, Sachs & Co. and Legg Mason Wood Walker,
Incorporated (the "Underwriters") in connection with a proposed public offering
of $150,000,000 of its 6.625% Notes due October 1, 2000, which are guaranteed as
to payment of principal, premium, if any, and interest by CarrAmerica Realty,
L.P. On the same date, CarrAmerica Realty Corporation, CarrAmerica Realty, L.P.
and the Underwriters entered into a Terms Agreement with respect to the
offering. The closing of the offering is expected to occur on October 2, 1998.
Copies of the Underwriting Agreement and Terms Agreement are filed as exhibits
to this report.
Item 7. Exhibits
The exhibits to this Current Report relate to the Registration
Statement on Form S-3 (No. 333-53751) of CarrAmerica Realty Corporation and
CarrAmerica Realty, L.P. and are filed herewith for incorporation by reference
in such Registration Statement. The exhibits are listed in the Exhibit Index,
which appears immediately after the signature pages and is incorporated in this
Item 7 by reference.
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SIGNATURE
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.
CARRAMERICA REALTY CORPORATION
Date: October 2, 1998 By: /s/ Brian K. Fields
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Brian K. Fields
Chief Financial Officer
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SIGNATURE
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.
CARRAMERICA REALTY, L.P.
Date: October 2, 1998 By: CARRAMERICA REALTY GP HOLDINGS, INC.
General Partner
By: /s/ Brian K. Fields
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Brian K. Fields
Chief Financial Officer
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EXHIBIT INDEX
Exhibit Document
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1.1 Underwriting Agreement, dated as of September 25, 1998, by
and among CarrAmerica Realty Corporation, Goldman Sachs & Co.
and Legg Mason Wood Walker, Incorporated, and Terms
Agreement, dated as of September 25, 1998, by and among
CarrAmerica Realty Corporation, CarrAmerica Realty, L.P.,
Goldman Sachs & Co. and Legg Mason Wood Walker, Incorporated
4.1 Indenture, dated as of October 1, 1998, by and among
CarrAmerica Realty Corporation, CarrAmerica Realty, L.P., as
Guarantor, and Bankers Trust Company, as Trustee
5.1 Opinion of Hogan & Hartson L.L.P. regarding legality of
securities
23.1 Consent of Hogan & Hartson L.L.P. to the filing of Exhibit
5.1 herewith (included in its opinion filed as Exhibit 5.1)
25.1 Statement of Eligibility of Trustee on Form T-1
Exhibit 1.1
CARRAMERICA REALTY CORPORATION
(a Maryland corporation)
Common Stock, Preferred Stock, Common Stock Warrants, Debt Warrants
Depositary Shares and Debt Securities
UNDERWRITING AGREEMENT
September 25, 1998
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
CarrAmerica Realty Corporation (the "Company") may from time
to time offer in one or more series its (i) unsecured debt securities ("Debt
Securities"), (ii) preferred stock, $.01 par value ("Preferred Stock"), (iii)
common stock, $.01 par value ("Common Stock"), (iv) warrants exercisable for
Common Stock ("Common Stock Warrants") , (v) warrants exercisable for Debt
Securities ("Debt Warrants" and, together with Common Stock Warrants,
"Warrants") and (vi) shares of Preferred Stock represented by depositary shares
("Depositary Shares"), with an aggregate public offering price of up to
$1,000,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale) in amounts, at prices and on terms to be determined at the
time of offering. The Debt Securities, Preferred Stock, Common Stock, Warrants,
and Depositary Shares (collectively, the "Securities") may be offered,
separately or together, in separate series in amounts, at prices and on terms to
be set forth in one or more Prospectus Supplements as hereinafter defined. The
Warrants will be issued pursuant to a Warrant Agreement (the "Warrant
Agreement") between the Company and a warrant agent (the "Warrant Agent"). The
Debt Securities will be issued under one or more indentures, as amended or
supplemented (each, an "Indenture"), between the Company and a trustee (a
"Trustee"). The Debt Securities may be guaranteed (the "Guarantees") as to
payments of principal, interest and premium, if any, by CarrAmerica Realty, L.P.
(the "Guarantor"). The Company may issue receipts for the Depositary Shares,
each of which will represent a fractional interest of a share of a particular
series of Preferred Stock. Shares of Preferred Stock of each series represented
by Depositary Shares will be deposited under a separate deposit agreement (each
a "Deposit Agreement") among the Company, the depositary named therein and the
holders from time to time of receipts for the Depositary Shares. Each series of
Preferred Stock may vary as to the specific number of shares, title, liquidation
preference, issuance price, ranking, dividend rate or rates (or method of
calculation), dividend payment dates, any redemption or sinking fund
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requirements, any conversion provisions and any other variable terms as set
forth in the applicable articles supplementary (each, an "Articles
Supplementary") relating to such Preferred Stock as issued from time to time.
Each series of Debt Securities may vary as to aggregate principal amount,
maturity date, interest rate or formula and timing of payments thereof,
redemption or repayment provisions, conversion provisions and any other variable
terms which the Indenture contemplates may be set forth in the Debt Securities
as issued from time to time. As used herein, "the Representatives," unless the
context otherwise requires, shall mean the parties to whom this Agreement is
addressed together with the other parties, if any, identified in the applicable
Terms Agreement (as hereinafter defined) as additional co-managers with respect
to Underwritten Securities (as hereinafter defined) purchased pursuant thereto.
Whenever the Company determines to make an offering of
Securities through the Representatives or through an underwriting syndicate
managed by the Representatives, the Company will enter into an agreement (the
"Terms Agreement") providing for the sale of such Securities (the "Underwritten
Securities") to, and the purchase and offering thereof by, the Representatives
and such other underwriters, if any, selected by the Representatives as have
authorized the Representatives to enter into such Terms Agreement on their
behalf (the "Underwriters," which term shall include the Representatives whether
acting alone in the sale of the Underwritten Securities or as a member of an
underwriting syndicate and any Underwriter substituted pursuant to Section 10
hereof). The Terms Agreement relating to the offering of Underwritten Securities
shall specify the amount of Underwritten Securities to be initially issued (the
"Initial Underwritten Securities"), the names of the Underwriters participating
in such offering (subject to substitution as provided in Section 10 hereof), the
amount of Initial Underwritten Securities which each such Underwriter severally
agrees to purchase, the names of such of the Representatives or such other
Underwriters acting as co-managers, if any, in connection with such offering,
the price at which the Initial Underwritten Securities are to be purchased by
the Underwriters from the Company, the initial public offering price, if any, of
the Initial Underwritten Securities, the time and place of delivery and payment
and any other variable terms of the Initial Underwritten Securities (including,
but not limited to, current ratings, designations, liquidation preferences,
voting and other rights, denominations, interest rates or formulas, interest
payment dates, maturity dates and conversion, redemption or repayment provisions
applicable to the Initial Underwritten Securities). In addition, each Terms
Agreement shall specify whether the Underwriters will be granted an option to
purchase additional Underwritten Securities to cover over-allotments, if any,
and the aggregate amount of Underwritten Securities subject to such option (the
"Option Securities"). As used herein, the term "Underwritten Securities" shall
include the Initial Underwritten Securities and all or any portion of the Option
Securities agreed to be purchased by the Underwriters as provided herein, if
any. The Terms Agreement, which shall be substantially in the form of Exhibit A
hereto, may take the form of an exchange of any standard form of written
telecommunication between the Representatives and the Company. Each offering of
Underwritten Securities through the Representatives or through an underwriting
syndicate managed by the Representatives will be governed by this Agreement, as
supplemented by the applicable Terms Agreement.
The Company and the Guarantor have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
(No. 333-53751) for the registration of the Securities and the Guarantees under
the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 430A or Rule 415 of the rules
and regulations of the Commission under the 1933 Act (the "1933 Act
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Regulations"), and the Company and the Guarantor have filed such amendments
thereto as may have been required prior to the execution of the applicable Terms
Agreement. Such registration statement (as amended, if applicable) has been
declared effective by the Commission and an Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement and the prospectus constituting a part thereof (including in each case
the information, if any, deemed to be part thereof pursuant to Rule 430A(b) of
the 1933 Act Regulations), and each prospectus supplement relating to the
offering of Underwritten Securities pursuant to Rule 415 of the 1933 Act
Regulations (the "Prospectus Supplement"), including all documents incorporated
therein by reference, as from time to time amended or supplemented pursuant to
the 1933 Act, the Securities Exchange Act of 1934, as amended (the "1934 Act")
or otherwise, are collectively referred to herein as the "Registration
Statement" and the "Prospectus," respectively; provided that if any revised
Prospectus shall be provided to the Representatives by the Company for use in
connection with the offering of Underwritten Securities which differs from the
Prospectus on file at the Commission at the time the Registration Statement
becomes effective (whether or not such revised prospectus is required to be
filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations), the
term "Prospectus" shall refer to each such revised prospectus from and after the
time it is first provided to the Representatives for such use; provided,
further, that a Prospectus Supplement shall be deemed to have supplemented the
Prospectus only with respect to the offering of Underwritten Securities to which
it relates. Any registration statement (including any supplement thereto or
information which is deemed part thereof) filed by the Company and the Guarantor
under Rule 462(b) of the 1933 Act Regulations (a "Rule 462(b) Registration
Statement") shall be deemed to be part of the Registration Statement. Any
prospectus (including any amendment or supplement thereto or information which
is deemed part thereof) included in the Rule 462(b) Registration Statement and
any term sheet as contemplated by Rule 434 of the 1933 Act Regulations (a "Term
Sheet") shall be deemed to be part of the Prospectus. All references in this
Agreement to financial statements and schedules and other information which is
"contained," "included" 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 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. For purposes of this Agreement,
all references to the Registration Statement, any preliminary prospectus,
preliminary prospectus supplement, Prospectus or Prospectus Supplement or any
Term Sheet or any amendment or supplement to the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering Analysis and Retrieval System.
The term "Subsidiary" means (i) a corporation or a partnership
a majority of the outstanding voting stock, partnership or membership interests,
as the case may be, of which is owned or controlled, directly or indirectly, by
the Company, Carr Realty, L.P., a Delaware limited partnership ("Carr L.P."), or
CarrAmerica Realty, L.P., a Delaware limited partnership ("CarrAmerica L.P." and
together with Carr L.P., the "Partnerships"), as the case may be, or by one or
more other Subsidiaries of the Company or either Partnership, and (ii)
OmniOffices, Inc. ("OmniOffices").
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SECTION 1. Representations and Warranties of the Company.
(a) The Company represents and warrants to the
Representatives, as of the date hereof, and to the Representatives and each
other Underwriter named in the applicable Terms Agreement, as of the date
thereof (in each case, a "Representation Date"), as follows:
(i) 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 Regulations and, at the time any Debt
Securities are issued, will comply with the 1939 Act and the rules and
regulations thereunder (the "1939 Act Regulations"). The Registration
Statement, at the time the Registration Statement became effective, did
not, 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. The Prospectus, as of the date hereof does not, and as of
each Representation Date and Closing Time (as hereinafter defined)
(unless the term "Prospectus" refers to a prospectus which has been
provided to the Representatives by the Company for use in connection
with an offering of Underwritten Securities which differs from the
Prospectus on file at the Commission at the time the Registration
Statement became effective, in which case at the time it was first
provided to the Representatives for such use) 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 Company in writing by any Underwriter
through the Representatives expressly for use in the Registration
Statement or Prospectus or to that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification
on Form T-1 under the 1939 Act (the "Statement of Eligibility") of a
Trustee under an Indenture. If a Rule 462(b) Registration Statement is
required in connection with the offering and sale of the Securities,
the Company has complied or will comply with the requirements of Rule
111 under the 1933 Act Regulations relating to the payment of filing
fees therefor.
(ii) The documents incorporated or deemed to be
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 Commission, complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations of
the Commission under the 1934 Act (the "1934 Act Regulations"), and,
when read together with the other information in the Prospectus, at the
time the Registration Statement became effective and as of the
applicable Representation Date or Closing Time or during the period
specified in Section 3(f), did not and will not include 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, in
the light of the circumstances under which they were made, not
misleading.
(iii) The accountants who certified the financial
statements and supporting schedules included in, or incorporated by
reference into, the Registration Statement and Prospectus, are
independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
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(iv) The financial statements (including the notes
thereto) included in, or incorporated by reference into, the
Registration Statement and the Prospectus present fairly the financial
position of the respective entity or entities presented therein at the
respective dates indicated and the results of their operations for the
respective periods specified; except as otherwise stated in the
Registration Statement and Prospectus, said financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis; the supporting schedules
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the information required to be stated
therein; and the Company's ratios of earnings to fixed charges (actual
and, if any, proforma) included in the Prospectus under the captions
"Ratios of Earnings to Fixed Charges" and in Exhibit 12.1 to the
Registration Statement have been calculated in compliance with Item
503(d) of Regulation S-K of the Commission. The financial information
and data included in the Registration Statement and the Prospectus
present fairly the information included therein and have been prepared
on a basis consistent with that of the financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus and the books and records of the respective entities
presented therein. Pro forma financial information included in or
incorporated by reference in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable
requirements of the 1933 Act, the 1933 Act Regulations and guidelines
of the American Institute of Certified Public Accountants with respect
to pro forma financial information and includes all adjustments
necessary to present fairly in all material respects the pro forma
financial position of the Company at the respective dates indicated (if
such financial position is presented) and the results of operations for
the respective periods specified.
(v) No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company or either Partnership, threatened by the Commission or by
the state securities authority of any jurisdiction. No order preventing
or suspending the use of the Prospectus has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company or either Partnership, threatened by the Commission or by
the state securities authority of any jurisdiction.
(vi) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, assets or business affairs of the Company, the Partnerships,
and the Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business; (B) no material casualty
loss or material condemnation or other material adverse event with
respect to any of the interests held directly or indirectly in any of
the real properties owned, directly or indirectly, by the Company,
either Partnership or any Subsidiary (the "Properties") or any entity
wholly or partially owned by the Company, either Partnership or any
Subsidiary has occurred; (C) there have been no acquisitions or
transactions entered into by the Company, either Partnership or any
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Subsidiary, other than those in the ordinary course of business, which
are material with respect to such entities or would result, upon
consummation, in any material inaccuracy in the representations
contained in Section 1(a)(iv) above; (D) except for regular quarterly
dividends on the Common Stock, and dividends on the Preferred Stock, if
any, and distributions by either of the Partnerships with respect to
its partnership interests ("Units"), there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock or by either of the Partnerships with
respect to its Units; and (E) with the exception of transactions in
connection with stock and Unit options and in connection with dividend
reinvestment plans, the issuance of shares of Common Stock upon the
exchange of Units and the issuance of Units in connection with the
acquisition of real or personal property, there has been no change in
the capital stock or in the partnership interests or membership
interests, as the case may be, of the Company, either of the
Partnerships or any Subsidiary, and no increase in the indebtedness of
the Company, either of the Partnerships, or any Subsidiary, that is
material to the Company, the Partnerships and the Subsidiaries,
considered as one enterprise.
(vii) The Company has been duly formed, and is
validly existing and in good standing as a corporation under the laws
of Maryland with corporate power and authority to conduct the business
in which it is engaged or proposes to engage and to own, lease and
operate its properties as described in the Prospectus and to enter into
and perform its obligations under this Agreement, the Terms Agreement,
any Warrant Agreement and any Indenture.
(viii) Each of the Partnerships and the Subsidiaries
has been duly formed, and is validly existing and in good standing as a
corporation or partnership under the laws of its jurisdiction of
organization, with partnership or corporate power and authority to
conduct the business in which it is engaged or proposes to engage and
to own, lease and operate its properties as described in the
Prospectus.
(ix) Each of the Company, the Partnerships and the
Subsidiaries is duly qualified or registered as a foreign partnership
or corporation in good standing and authorized to do business in each
jurisdiction in which such qualification is required whether by reason
of the ownership, leasing or management of property or the conduct of
business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, assets or business affairs of the Company, the
Partnerships and the Subsidiaries considered as one enterprise (a
"Material Adverse Effect").
(x) If the applicable Underwritten Securities are
Common Stock, Preferred Stock or Common Stock Warrants, the capital
stock of the Company as of the date specified in the Prospectus is as
set forth therein under "Capitalization." All the issued and
outstanding shares of capital stock of the Company have been duly
authorized and are validly issued, fully paid and non-assessable and
have been offered and sold in compliance with all applicable laws
(including, without limitation, federal, state or foreign securities
laws).
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(xi) Except for transactions described in the
Prospectus and transactions in connection with stock and Unit options
and in connection with dividend reinvestment plans and exchanges of
Units, there are no outstanding securities convertible into or
exchangeable for any capital stock of the Company and no outstanding
options, rights (preemptive or otherwise) or warrants to purchase or to
subscribe for such shares, Units or other securities of the Company,
the Partnerships or the Subsidiaries (other than OmniOffices).
(xii) The applicable Underwritten Securities, if such
Underwritten Securities are Common Stock or Preferred Stock, have been
duly authorized by the Company for issuance and sale to the
Underwriters pursuant to this Agreement, and, when issued and delivered
by the Company, pursuant to this Agreement and the applicable Terms
Agreement against payment of the consideration set forth in the Terms
Agreement, will be validly issued, fully paid and non-assessable. Upon
payment of the purchase price and delivery of such Underwritten
Securities in accordance herewith, each of the Underwriters will
receive good, valid and marketable title to such Underwritten
Securities, free and clear of all security interests, mortgages,
pledges, liens, encumbrances, claims and equities. The terms of such
applicable Underwritten Securities conform in all material respects to
all statements and descriptions related thereto contained in the
Prospectus. The form of stock certificate to be used to evidence the
applicable Underwritten Securities will be in due and proper form and
will comply with all applicable legal requirements. The issuance of
such applicable Underwritten Securities is not subject to any
preemptive or other similar rights, except as described in the
Prospectus.
(xiii) If applicable, the Warrants have been duly
authorized by the Company for issuance and sale to the Underwriters
pursuant to this Agreement, and, when issued and delivered in the
manner provided for in this Agreement and any Terms Agreement and
countersigned by the Warrant Agent as provided in the Warrant
Agreement, against payment of the consideration therefor specified in
the applicable Terms Agreement, will be duly executed, countersigned,
issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Warrant Agreement under which they are issued. Upon payment of the
purchase price and delivery of such Underwritten Securities in
accordance herewith, each of the Underwriters will receive good, valid
and marketable title to such Underwritten Securities, free and clear of
all security interests, mortgages, pledges, liens, encumbrances, claims
and equities. The terms of the Warrants conform in all material
respects to all statements and descriptions related thereto contained
in the Prospectus. The issuance of the Warrants is not subject to any
preemptive or other similar rights, except as described in the
Prospectus.
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(xiv) The applicable Underwritten Securities, if such
Underwritten Securities are Debt Securities and the related Guarantees,
if any, are in the form contemplated by the Indenture, have been duly
authorized by the Company and the Guarantor for issuance and sale to
the Underwriters pursuant to this Agreement and, when executed,
authenticated, issued and delivered in the manner provided for in this
Agreement, any Terms Agreement and the applicable Indenture, against
payment of the consideration therefor specified in the applicable Terms
Agreement, such Debt Securities, together with the Guarantees, if any,
will constitute valid and legally binding obligations of the Company or
the Guarantor, as applicable, entitled to the benefits of the Indenture
and such Debt Securities and Guarantees will be enforceable against the
Company or the Guarantor, as applicable, in accordance with their
terms; provided, however, that the enforceability of the foregoing may
be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting creditors' rights generally and by general equitable
principles. Upon payment of the purchase price and delivery of such
Underwritten Securities in accordance herewith, each of the
Underwriters will receive good, valid and marketable title to such
Underwritten Securities, free and clear of all security interests,
mortgages, pledges, liens, encumbrances, claims and equities. The terms
of such applicable Underwritten Securities and the related Guarantees,
if any, conform in all material respects to all statements and
descriptions related thereto in the Prospectus. Such Underwritten
Securities rank and will rank on a parity with all unsecured
indebtedness (other than subordinated indebtedness) of the Company that
is outstanding on the Representation Date or that may be incurred
thereafter, and senior to all subordinated indebtedness of the Company
that is outstanding on the Representation Date or that may be incurred
thereafter, except that such Underwritten Securities will be
effectively subordinated to the prior claims of each secured mortgage
lender to any specific Property which secures such lender's mortgage.
(xv) If applicable, the Common Stock issuable upon
conversion of any of the Debt Securities or the Preferred Stock and
upon exercise of the Common Stock Warrants will have been duly and
validly authorized and reserved for issuance upon such conversion or
exercise by all necessary action and such stock, when issued upon such
conversion or exercise, will be duly and validly issued, fully paid and
non-assessable, and the issuance of such stock upon such conversion or
exercise will not be subject to preemptive or other similar rights
except as described in the Prospectus. The Common Stock so issuable
conforms in all material respects to all statements relating thereto
contained in the Prospectus.
(xvi) If applicable, the Debt Securities issuable upon the
exercise of the Debt Warrants are in the form contemplated by the
Indenture, have been duly authorized by the Company for issuance upon
exercise of the Debt Warrants and, when executed, authenticated, issued
and delivered in the manner provided for in the Debt Warrants and the
applicable Indenture, against payment of the consideration therefor
specified in the Debt Warrants, such Debt Securities will constitute
valid and legally binding obligations of the Company, entitled to the
benefits of the Indenture and such Debt Securities will be enforceable
against the Company in accordance with their terms; provided, however,
that the enforceability of the foregoing may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights generally and by general equitable principles.
(xvii) The applicable Warrant Agreement, if any, will
have been duly authorized, executed and delivered by the Company prior
to the issuance of any applicable Underwritten Securities, and will
constitute a valid and legally binding agreement of the Company
enforceable in accordance with its terms; provided, however, that the
enforceability of the foregoing may be limited by bankruptcy,
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insolvency, reorganization or other similar laws affecting creditors'
rights generally and by general equitable principles. The Warrant
Agreement conforms in all material respects to all statements relating
thereto contained in the Prospectus.
(xviii) (A) This Agreement has been duly and validly
authorized, executed and delivered by the Company, and, assuming due
authorization, execution and delivery by the Representatives, is a
valid and binding agreement of the Company, and (B) at the
Representation Date, the Terms Agreement will have been duly and
validly authorized, executed and delivered by the Company, and,
assuming due authorization, execution and delivery by the
Representatives, will be valid and binding agreements, enforceable in
accordance with its or their terms; provided, however, that the
enforceability of the foregoing may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights generally and by general equitable principles;.
(xix) If applicable, the Indenture (A) has been duly qualified
under the 1939 Act, will have been duly and validly authorized,
executed and delivered by the Company prior to the issuance of any
applicable Underwritten Securities, and when executed and delivered by
the Trustee, will constitute a valid and binding obligation of the
Company, enforceable in accordance with its terms; provided, however,
that the enforceability of the foregoing may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights generally and by general equitable principles; and (B) conforms
in all material respects to the description thereof in the Prospectus.
(xx) None of the Company, the Partnerships or any Subsidiary
is in violation of its charter, by-laws, certificate of limited
partnership or partnership agreement, as the case may be, or in default
in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which such entity is a
party or by which such entity may be bound, or to which any of its
property or assets is subject, which violation or default separately or
in the aggregate would have a Material Adverse Effect.
(xxi) The issuance of the Underwritten Securities, the
execution and delivery of this Agreement, the applicable Terms
Agreement, any Warrant Agreement, any Deposit Agreement and any
Indenture and the performance of the obligations set forth herein or
therein by the Company, and the consummation of the transactions
contemplated hereby and thereby will not (A) result in the creation of
any lien, charge or encumbrance upon the Properties and (B) conflict
with or constitute a breach or violation by the parties thereto of, or
default under, (1) any material contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership agreement or other
instrument or agreement to which the Company, either of the
Partnerships or any Subsidiary is a party, or by which they, any of
them, any of their respective properties or other assets or any
Property (including, without limitation, partnership and other
interests in partnerships or other entities which own direct or
indirect interests therein) is or may be bound or subject, (2) the
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charter, by-laws, certificate of limited partnership, partnership
agreement or other organizational document, as the case may be, of the
Company, the Partnerships or any Subsidiary or (3) any applicable law,
rule, order, administrative regulation or administrative or court
decree.
(xxii) There is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company and the Partnerships,
threatened against or affecting the Company, either of the
Partnerships, any Subsidiary, any Property or any officer or director
of the foregoing that is required to be disclosed in the Registration
Statement (other than as disclosed therein), and that, if determined
adversely to the Company, the applicable Partnership, any Subsidiary,
any Property, or any such officer or director, would reasonably be
expected to result in any Material Adverse Effect, or which might
materially and adversely affect the consummation of this Agreement, the
applicable Terms Agreement, any Warrant Agreement, any Deposit
Agreement, the Indenture, if any, or the transactions contemplated
herein and therein. There is no pending legal or governmental
proceeding to which the Company, either of the Partnerships or any
Subsidiary is a party or of which any of their respective properties or
assets or any Property (including, without limitation, partnership and
other interests in partnerships or other entities which own direct or
indirect interests therein), is the subject, including ordinary routine
litigation incidental to the business or operations of the foregoing,
that is or would reasonably be expected to be, material to the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Company, the Partnerships and the
Subsidiaries, considered as one enterprise. There are no contracts or
documents of a character which are required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been filed as exhibits to the Registration
Statement.
(xxiii) At all times beginning with its taxable
period ended December 31, 1993, the Company has been, and upon the sale
of the applicable Underwritten Securities, the Company will continue to
be, organized and operated in conformity with the requirements for
qualification as a real estate investment trust under the Internal
Revenue Code of 1986, as amended (the "Code"), and its proposed method
of operation will enable it to continue to meet the requirements for
taxation as a real estate investment trust under the Code.
(xxiv) None of the Company, the Partnerships or any
Subsidiary is required to be registered under the Investment Company
Act of 1940, as amended (the "1940 Act").
(xxv) The Company, the Partnerships and the other
Subsidiaries own, possess or license the trademarks, service marks and
trade names (collectively, "proprietary rights") that are material to
the businesses now operated or proposed to be operated by them and that
are currently employed or proposed to be employed by them in connection
with such businesses, and none of the Company, the Partnerships or any
of the Subsidiaries has received any notice or is otherwise aware of
any infringement of or conflict with asserted rights of others with
respect to any such proprietary rights.
(xxvi) All authorizations, approvals or consents of
any court or government authority or agency or other entity or person
that are necessary in connection with the offering, issuance or sale of
the Underwritten Securities hereunder by the Company have been
obtained, except such as may be required under the 1933 Act or the 1933
Act Regulations or state securities laws with respect to the
Underwritten Securities.
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(xxvii) Each of the Company, the Partnerships and the
Subsidiaries possesses such certificates, authorizations or permits
issued by the appropriate regulatory agencies or bodies necessary to
conduct the business now conducted by it, or proposed to be conducted
by it, and none of the Company, either of the Partnerships or any
Subsidiary has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially and adversely affect the
condition, financial or otherwise, or the earnings, assets, business
affairs or business prospects of the Company, the Partnerships and the
Subsidiaries considered as one enterprise.
(xxviii) No material labor dispute with the employees
of the Company, either of the Partnerships or any Subsidiary exists or,
to the knowledge of the Company or either of the Partnerships is
imminent.
(xxix) Except as disclosed in the Prospectus, (A) to
the knowledge of the Company, the Environment (as defined below) at
each Property is free of any Hazardous Substance (as defined below)
except for any Hazardous Substance that would not reasonably be
expected to have any material adverse effect on the condition,
financial or otherwise, or on the earnings, assets, business affairs or
business prospects of the Property, the Company, the Partnerships and
the Subsidiaries considered as one enterprise; (B) none of the Company,
the Partnerships or any Subsidiary and, to the knowledge of the Company
and the Partnerships, no prior owner of any Property has caused or
suffered to occur any Release (as defined below) of any Hazardous
Substance into the Environment on, in, under or from any Property in
violation of any Environmental Law applicable to such Property in an
amount that would reasonably be expected to have a material adverse
effect on the condition, financial or otherwise, or on the earnings,
assets, business affairs or business prospects of any Property, the
Company, the Partnerships and the Subsidiaries considered as one
enterprise and no condition exists on, in or under any Property or, to
the knowledge of the Company or the Partnerships, any property adjacent
to any Property that could reasonably be expected to result in the
occurrence of material liabilities under, or any material violations
of, any Environmental Law (as defined below) applicable to such
Property, give rise to the imposition of any Lien (as defined below)
under any Environmental Law, or cause or constitute an environmental
hazard to any property, person or entity; (C) none of the Company, the
Partnerships or any Subsidiary is engaged in or intends to engage in
any manufacturing or any other similar operations at any Property and,
to the knowledge of the Company and the Partnerships, no prior owner of
any Property engaged in any manufacturing or any similar operations at
any Property that (1) require the use, handling, transportation,
storage, treatment or disposal of any Hazardous Substance (other than
paints, stains, cleaning solvents, insecticides, herbicides, or other
substances that are used in the ordinary course of operating any
Property and in compliance with all applicable Environmental Laws) or
(2) require permits or are otherwise regulated pursuant to any
Environmental Law; (D) none of the Company, the Partnerships or any
Subsidiary and, to the knowledge of the Company and the Partnerships,
no prior owner of any Property has received any notice of a claim under
or pursuant to any Environmental Law applicable to a Property or under
common law pertaining to Hazardous Substances on any Property or
pertaining to other property at which Hazardous Substances generated at
any Property have come to be located; (E) none of the Company, the
Partnerships or any Subsidiary and, to the best knowledge of the
Company and the Partnerships, no prior owner of any Property has
received any notice from any Governmental Authority (as defined below)
claiming any violation of any Environmental Law that is uncured or
unremediated as of the date hereof; and (F) no Property (1) is included
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or proposed for inclusion on the National Priorities List issued
pursuant to CERCLA (as defined below) by the United States
Environmental Protection Agency (the "EPA") or on the Comprehensive
Environmental Response, Compensation, and Liability Information System
database maintained by the EPA as a potential CERCLA removal, remedial
or response site or (2) is included or proposed for inclusion on, any
similar list of potentially contaminated sites pursuant to any other
applicable Environmental Law nor has the Company, either of the
Partnerships or any Subsidiary received any written notice from the EPA
or any other Governmental Authority proposing the inclusion of any
Property on such list.
As used herein, "Hazardous Substance" shall include any
hazardous substance, hazardous waste, toxic or dangerous substance,
pollutant, asbestos-containing materials, PCBs, pesticides, explosives,
radioactive materials, dioxins, urea formaldehyde insulation, pollutant
or waste, including any such substance, pollutant or waste identified,
listed or regulated under any Environmental Law (including, without
limitation, materials listed in the United States Department of
Transportation Optional Hazardous Material Table, 49 C.F.R. ss.
172.101, as the same may now or hereafter be amended, or in the EPA's
List of Hazardous Substances and Reportable Quantities, 40 C.F.R. Part
3202, as the same may now or hereafter be amended); "Environment" shall
mean any surface water, drinking water, ground water, land surface,
subsurface strata, river sediment, buildings and structures;
"Environmental Law" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act, as amended (42 U.S.C. ss.
9601, et seq.) ("CERCLA"), the Resource Conservation Recovery Act, as
amended (42 U.S.C. ss. 6901, et seq.), the Clean Air Act, as amended
(42 U.S.C. ss. 7401, et seq.), the Clean Water Act, as amended (33
U.S.C. ss. 1251, et seq.), the Toxic Substances Control Act, as amended
(15 U.S.C. ss. 2601, et seq.), the Toxic Substances Control Act, as
amended (29 U.S.C. ss. 651, et seq.), the Hazardous Materials
Transportation Act, as amended (49 U.S.C. ss. 1801, et seq.), together
with all rules, regulations and orders promulgated thereunder and all
other federal, state and local laws, ordinances, rules, regulations and
orders relating to the protection of the environment from environmental
effects; "Governmental Authority" shall mean any federal, state or
local governmental office, agency or authority having the duty or
authority to promulgate, implement or enforce any Environmental Law;
"Lien" shall mean, with respect to any Property, any material mortgage,
deed of trust, pledge, security interest, lien, encumbrance, penalty,
fine, charge, assessment, judgment or other liability in, on or
affecting such Property; and "Release" shall mean any spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, emanating or disposing of any Hazardous
Substance into the Environment, including, without limitation, the
abandonment or discard of barrels, containers, tanks (including,
without limitation, underground storage tanks) or other receptacles
containing or previously containing any Hazardous Substance or any
release, emission, discharge or similar term, as those terms are
defined or used in any Environmental Law.
(xxx) Each of the Company, the Partnerships and the
Subsidiaries has filed all federal, state, local and foreign income and
franchise tax returns which have been required to be filed and each
such tax return was filed on or prior to the date on which such tax
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return was required to be filed or, in lieu of such timely filings,
each of the Company, the Partnerships, or the Subsidiaries, as the case
may be, has duly and timely filed such applications for extension as
may be required to effect all necessary extensions (such extensions
having been obtained and remaining in full force and effect) and has
paid all taxes shown thereon as due and payable and any other
assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except, in all cases, for any such
tax assessment, fine or penalty that is being contested in good faith
through appropriate proceedings and as to which appropriate reserves
have been established.
(xxxi) Except as disclosed in the Registration
Statement and except for (i) persons who received Units or shares of
Common Stock in connection with the formation of the Company, or (ii)
persons who received shares of Common Stock, options to acquire shares
of Common Stock or Units in connection with transactions with the
Partnerships or the Company, there are no persons with registration or
other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the
1933 Act.
(xxxii) Each of the Company, the Partnerships and the
Subsidiaries (or the partnership or other entity owning the Property)
has obtained title insurance insuring good, marketable and lien free
title to the Properties owned by them (other than the Properties in
which the applicable entity owns less than a majority interest),
subject only to customary easements and encumbrances and other
exceptions to title which do not materially impair the operation,
development or use thereof for the purposes intended therefor as
contemplated by the Prospectus on each of such Properties.
(xxxiii) The Common Stock will be listed on the New
York Stock Exchange on the applicable Representation Date and at the
applicable Closing Time. If so stated in the applicable Prospectus
Supplement as of the applicable Representation Date, the Preferred
Stock and Warrants, as applicable, will have been approved for listing
on the New York Stock Exchange upon notice of issuance.
(xxxiv) Unless otherwise agreed to by the
Representatives, the Preferred Stock, Debt Securities and Debt Warrants
will have an investment grade rating from one or more nationally
recognized statistical rating organizations at the Representation Date
and at the applicable Closing Time.
(xxxv) If the Underwritten Securities are Debt
Securities, then immediately following the application of the proceeds
of the sale of the Underwritten Securities in the manner set forth in
the Prospectus, the mortgages and deeds of trust encumbering the
Properties and assets described in the Prospectus will not be
convertible and none of the partnerships or other entities owning an
interest in the Properties nor any person related to or affiliated with
such partnerships or other entities will hold a participating interest
therein and said mortgages and deeds of trust will not be
cross-defaulted or cross-collateralized with any property not owned
directly or indirectly by the Company, the Partnerships or the
Subsidiaries.
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(xxxvi) Each of the Company, the Partnerships and the
Subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which they are engaged; and
none of the Company, the Partnerships and the Subsidiaries has any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue
its businesses at a cost that would not have a Material Adverse Effect,
except as described in or contemplated by the Registration Statement
and the Prospectus.
(xxxvii) The Company has not taken and will not take,
directly or indirectly, any action prohibited by Regulation M under the
1934 Act.
(xxxviii) The assets of the Company and the
Partnerships do not constitute "plan assets" under the Employee
Retirement Income Security Act of 1974, as amended.
(b) Any certificate signed by any officer of the Company,
either of the Partnerships or of any of the Subsidiaries and delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by such entity to each Underwriter as to the matters
covered thereby.
SECTION 2. Sale and Delivery to the Underwriters; Closing.
(a) The several commitments of the Underwriters to purchase
the Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions set forth
herein or in the applicable Terms Agreement.
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company may grant, if so provided in the applicable Terms Agreement
relating to the Initial Underwritten Securities, an option to the Underwriters
named in such Terms Agreement, severally and not jointly, to purchase up to the
number of Option Securities set forth therein at the same price per Option
Security as is applicable to the Initial Underwritten Securities. Such option,
if granted, will expire 30 days (or such lesser number of days as may be
specified in the applicable Terms Agreement) after the Representation Date
relating to the Initial Underwritten Securities, and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Underwritten Securities upon notice by the Representatives to the
Company setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time, date and place of delivery
(a "Date of Delivery") shall be determined by the Representatives, but shall not
be later than seven full business days nor earlier than two full business days
after the exercise of said option, nor in any event prior to the Closing Time,
unless otherwise agreed upon by the Representatives and the Company. If the
option is exercised as to all or any portion of the Option Securities, each of
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the Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of Option Securities then being purchased which
the number of Initial Underwritten Securities each such Underwriter has
severally agreed to purchase as set forth in the applicable Terms Agreement
bears to the total number of Initial Underwritten Securities (except as
otherwise provided in the applicable Terms Agreement), subject to such
adjustments as the Representatives in their discretion shall make to eliminate
any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of
certificates for, the Underwritten Securities to be purchased by the
Underwriters shall be made at the offices of Rogers & Wells LLP, 200 Park
Avenue, New York, New York 10166, or at such other place as shall be agreed upon
by the Representatives and the Company at 9:30 a.m. on the fourth business day
(or the third business day if required under Rule 15c6-1 of the 1934 Act, or
unless postponed in accordance with the provisions of Section 10) following the
date of the applicable Terms Agreement or at such other time as shall be agreed
upon by the Representatives and the Company (each referred to herein as a
"Closing Time"). In addition, in the event that any or all of the Option
Securities are purchased by the Underwriters, payment of the purchase price for,
and delivery of certificates for, such Option Securities shall be made at the
above-mentioned offices of Rogers & Wells LLP, or at such other place as shall
be agreed upon by the Representatives and the Company on each Date of Delivery
as specified in the notice from the Representatives to the Company. Unless
otherwise specified in the applicable Terms Agreement, payment shall be made to
the Company by wire transfer of Federal or similar same day funds payable to the
order of the Company against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Underwritten Securities to
be purchased by them. Certificates for the Underwritten Securities and the
Option Securities, if any, shall be in such denominations and registered in such
names as the Representatives may request in writing at least two business days
before the Closing Time or the relevant Date of Delivery, as the case may be. It
is understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Underwritten Securities and the Option Securities, if any, which
it has agreed to purchase. The Representatives, individually and not as
representatives of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Underwritten Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but any such payment shall not relieve such Underwriter from its obligations
hereunder. The certificates for the Initial Underwritten Securities and the
Option Securities, if any, will be made available for examination and packaging
by the Representatives not later than 10:00 a.m. on the last business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be, in New
York, New York.
SECTION 3. Covenants of the Company. The Company covenants with the
Representatives and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) In respect to each offering of Underwritten Securities,
the Company will prepare a Prospectus Supplement setting forth the
number of Underwritten Securities covered thereby and their terms not
otherwise specified in the Prospectus pursuant to which the
Underwritten Securities are being issued, the names of the Underwriters
participating in the offering and the number of Underwritten Securities
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which each severally has agreed to purchase, the names of the
Underwriters acting as co-managers in connection with the offering, the
price at which the Underwritten Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, if
any, the selling concession and reallowance, if any, and such other
information as the Representatives and the Company deem appropriate in
connection with the offering of the Underwritten Securities; and the
Company will promptly transmit copies of the Prospectus Supplement to
the Commission for filing pursuant to Rule 424(b) of the 1933 Act
Regulations and will furnish to the Underwriters named therein as many
copies of the Prospectus (including such Prospectus Supplement) as the
Representatives shall reasonably request.
(b) If, at the time the Prospectus Supplement was filed with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations, any
information shall have been omitted therefrom in reliance upon Rule
430A of the 1933 Act Regulations, then immediately following the
execution of the Terms Agreement, the Company will prepare, and file or
transmit for filing with the Commission in accordance with such Rule
430A and Rule 424(b) of the 1933 Act Regulations, a copy of an amended
Prospectus, or, if required by such Rule 430A, a post-effective
amendment to the Registration Statement (including amended
Prospectuses), containing all information so omitted. If required, the
Company will prepare and file or transmit for filing a Rule 462(b)
Registration Statement not later than the date of execution of the
Terms Agreement. If a Rule 462(b) Registration Statement is filed, the
Company shall make payment of, or arrange for payment of, the
additional registration fee owing to the Commission required by Rule
111 of the 1933 Act Regulations.
(c) The Company will notify the Representatives immediately,
and confirm such notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the
Commission for filing of any Prospectus Supplement or other supplement
or amendment to the Prospectus to be filed pursuant to the 1933 Act,
(iii) the receipt of any comments from the Commission, (iv) any request
by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional
information, and (v) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose; and the Company will
make every reasonable effort to prevent the issuance of any such stop
order and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(d) At any time when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act in connection with sales
of the Underwritten Securities, the Company will give the
Representatives notice of its intention to file or prepare any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus, whether pursuant to the 1933 Act, 1934 Act or
otherwise, will furnish the Representatives with copies of any such
amendment or supplement a reasonable amount of time prior to such
proposed filing and, unless required by law, will not file or use any
such amendment or supplement or other documents in a form to which the
Representatives or counsel for the Underwriters shall reasonably
object.
(e) The Company will deliver to the Representatives as soon as
available as many signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits
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filed therewith or incorporated by reference therein and documents
incorporated by reference therein) as the Representatives may
reasonably request and will also deliver to the Representatives as many
conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including documents incorporated by
reference into the Prospectus) as the Representatives may reasonably
request.
(f) The Company will furnish to each Underwriter, from time to
time during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as the Underwriters may
reasonably request for the purposes contemplated by the 1933 Act or the
1934 Act or the respective applicable rules and regulations of the
Commission thereunder.
(g) If any event shall occur as a result of which it is
necessary, in the reasonable opinion of counsel for the Underwriters,
to amend or supplement the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, the Company will forthwith amend or
supplement the Prospectus (in form and substance reasonably
satisfactory to counsel for the Underwriters) so that, as so amended or
supplemented, the Prospectus 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 existing
at the time it is delivered to a purchaser, not misleading, and the
Company will furnish to the Underwriters a reasonable number of copies
of such amendment or supplement.
(h) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Underwritten Securities for offering and
sale under the applicable securities laws and real estate syndication
laws of such states and other jurisdictions as the Representatives may
designate; provided, however, that the Company shall not be obligated
to (i) qualify as a foreign corporation in a jurisdiction it is not so
qualified, (ii) file any general consent to service of process or (iii)
take any actions that would subject it to income taxation in any such
jurisdiction. In each jurisdiction in which the Underwritten Securities
have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for so long as may be required for the
distribution of the Underwritten Securities.
(i) With respect to each sale of Underwritten Securities, the
Company 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 a
twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement.
(j) The Company will use the net proceeds received by it from
the sale of the Underwritten Securities in the manner specified in the
Prospectus under "Use of Proceeds."
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(k) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, will file
all documents required to be filed with the Commission pursuant to
Sections 13, 14 or 15 of the 1934 Act within the time periods required
by the 1934 Act and the 1934 Act Regulations.
(l) The Company will file with the New York Stock Exchange all
documents and notices required by the New York Stock Exchange of
companies that have securities listed on such exchange and, to the
extent the Preferred Stock, Warrants or Debt Securities (including Debt
Securities issuable upon exercise of Debt Warrants) are listed on the
New York Stock Exchange, the Company will use its best efforts to
maintain the listing of any such Underwritten Securities listed on the
New York Stock Exchange.
(m) In respect to each offering of Debt Securities, the
Company will qualify an Indenture under the 1939 Act and will endeavor
to have a Statement of Eligibility submitted on behalf of the Trustee.
(n) The Company will take all reasonable action necessary to
enable Standard & Poor's Corporation ("S&P"), Moody's Investors
Service, Inc. ("Moody's") or any other nationally recognized
statistical rating organization to provide their respective credit
ratings of any Underwritten Securities, if applicable.
(o) During the period specified in the applicable Prospectus
Supplement, the Company and the Partnerships will not, without the
prior written consent of Goldman, Sachs & Co., directly or indirectly,
sell, offer to sell, transfer, hypothecate, grant any option for the
sale of, or otherwise dispose of, (i) any securities of the same class
or series or ranking on a parity with any Underwritten Securities
(other than the Underwritten Securities covered by such Prospectus
Supplement) or any security convertible into or exchangeable for such
Underwritten Securities and (ii) if such Prospectus Supplement relates
to Common Stock Warrants or Debt Securities or Preferred Stock that is
convertible into or exchangeable for Common Stock, any Common Stock or
Units or any security convertible into or exchangeable for shares of
Common Stock. This transfer restriction does not apply to (i) grants of
options, and the issuance of shares in respect of such options; (ii)
the issuance of shares and units pursuant to a dividend reinvestment
plan or stock purchase plan; (iii) the issuance of Common Stock on the
exchange of Units; and (iv) the issuance of shares of Common Stock, or
any security convertible into or exchangeable or exercisable for Common
Stock, in connection with the acquisition of real property or an
interest or interests in real property.
(p) With respect to the Common Stock issuable on exercise of
Common Stock Warrants and the conversion of any Debt Securities and
Preferred Stock if such securities are convertible into Common Stock,
the Company will reserve and keep available at all times, free of
preemptive rights and other similar rights, a sufficient number of
shares of Common Stock for the purpose of enabling the Company to
satisfy any obligations to issue such Common Stock upon exercise of the
Common Stock Warrants and conversion of the Debt Securities or
Preferred Stock.
(q) With respect to the Common Stock issuable on exercise of
Common Stock Warrants and the conversion of any Debt Securities and
Preferred Stock if such securities are convertible into Common Stock,
the Company will use its best efforts to list such Common Stock on the
New York Stock Exchange.
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(r) The Company will use its best efforts to continue to meet
the requirements to qualify as a "real estate investment trust" under
the Code.
(s) During the period from the Closing Time until five years
after the Closing Time, the Company will deliver to the
Representatives, (i) promptly upon their becoming available, copies of
all current, regular and periodic reports of the Company mailed to its
stockholders or filed with any securities exchange or with the
Commission or any governmental authority succeeding to any of the
Commission's functions, and (ii) such other information concerning the
Company and the Partnerships as the Representatives may reasonably
request.
SECTION 4. Payment of Expenses. The Company and the Partnerships will
pay all expenses incident to the performance of their obligations under this
Agreement and the applicable Terms Agreement, including (i) the printing and
filing of the Registration Statement as originally filed and of each amendment
thereto; (ii) the cost of printing, or reproducing, and distributing to the
Underwriters copies of this Agreement and the applicable Terms Agreement; (iii)
the preparation, issuance and delivery of the Underwritten Securities to the
Underwriters, including capital duties, stamp duties and stock transfer taxes,
if any, payable upon issuance of any of the Underwritten Securities, the sale of
the Underwritten Securities to the Underwriters, their transfer between the
Underwriters pursuant to an agreement between such Underwriters and the fees and
expenses of the transfer agent for the Underwritten Securities; (iv) the fees
and disbursements of the Company's and Partnerships' counsel and accountants;
(v) the qualification of the Underwritten Securities and the Common Stock or
Debt Securities issuable upon exercise of Warrants and conversion of Debt
Securities or Preferred Stock, if any, under securities laws and real estate
syndication laws in accordance with the provisions of Section 3(h) hereof,
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey; (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, of each preliminary prospectus, and of the Prospectus and any
amendments or supplements thereto; (vii) the cost of printing, or reproducing,
and delivering to the Underwriters copies of the Blue Sky Survey; (viii) the fee
of the National Association of Securities Dealers, Inc.; (ix) the fees and
expenses incurred in connection with the listing of the Underwritten Securities
and the Common Stock or Debt Securities issuable upon exercise of the Warrants
and conversion of Debt Securities or Preferred Stock, if any, on the New York
Stock Exchange, any other national securities exchange or quotation system; (x)
any fees charged by nationally recognized statistical rating organizations for
the rating of the Preferred Stock or Debt Securities, if any; (xi) the printing
and delivery to the Underwriters of copies of the Indenture; (xii) the fees and
expenses of the Trustee and the Warrant Agent, including the reasonable fees and
disbursements of counsel for the Trustee or Warrant Agent, in connection with
the Warrant Agreement, Indenture and the Underwritten Securities; (xiii) the
preparation, issuance and delivery to the Depository Trust Company for credit to
the accounts of the respective Underwriters of any global note registered in the
name of Cede & Co., as nominee for the Depository Trust Company; and (xiv) any
transfer taxes imposed on the sale of the Underwritten Securities to the several
Underwriters.
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If this Agreement shall be terminated pursuant to Section 10
hereof, the Company shall not then be under any liability to any Underwriter
except as provided in Sections 4 and 6 hereof; but, if for any other reason, any
Underwritten Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through you for all
out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Underwritten Securities
not so delivered, but the Company shall then be under no further liability to
any Underwriter except as provided in Sections 4 and 6 hereof.
SECTION 5. Conditions of Underwriter's Obligations. The obligations of
the Underwriters hereunder are subject to the accuracy, as of the date hereof
and at Closing Time, of the representations and warranties of the Company herein
contained, to the performance by the Company of its obligations hereunder, and
to the following further conditions:
(a) At Closing Time, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission; (ii) if the Company has elected to rely upon Rule 430A
of the 1933 Act Regulations, the public offering price of and the
interest rate on the Underwritten Securities, as the case may be, and
any price-related information previously omitted from the effective
Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) of the
1933 Act Regulations within the prescribed time period, and prior to
the applicable Closing Time, the Company shall have provided evidence
satisfactory to the Representatives of such timely filing, or a
post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the
requirements of Rule 430A of the 1933 Act Regulations; (iii) if
Preferred Stock, Debt Securities or Debt Warrants are being offered,
the rating assigned by any nationally recognized statistical rating
organization as of the date of the applicable Terms Agreement shall not
have been lowered since such date nor shall any such rating
organization have publicly announced that it has placed the Preferred
Stock or Debt Securities on what is commonly termed a "watch list" for
possible downgrading; (iv) if Debt Securities or Debt Warrants are
being offered, the rating assigned by any nationally recognized
statistical rating organization to any long-term debt securities of the
Company as of the date of the applicable Terms Agreement shall not have
been lowered since such date nor shall any such rating organization
have publicly announced that it has placed any long-term debt
securities of the Company on what is commonly termed a "watch list" for
possible downgrading; and (v) there shall not have come to the
attention of the Representatives any facts that would cause the
Representatives to believe that the Prospectus, together with the
applicable Prospectus Supplement, at the time it was required to be
delivered to purchasers of the Underwritten Securities, 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
circumstances existing at such time, not misleading. If a Rule 462(b)
Registration Statement is required, such Rule 462(b) Registration
Statement shall have been transmitted to the Commission for filing and
have become effective within the prescribed time period, and, prior to
Closing Time, the Company shall have provided to the Underwriters
evidence of such filing and effectiveness in accordance with Rule
462(b) of the 1933 Act Regulations.
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(b) At Closing Time the Representatives shall have received:
(1) The favorable opinion, dated as of the applicable
Closing Time, of Hogan & Hartson L.L.P., counsel for the
Company and the Partnerships in form and substance reasonably
satisfactory to counsel for the Underwriters, to the effect
that:
(i) The Company was incorporated, existing
and in good standing as of the date of the
certificate identified elsewhere in the opinion
letter under the laws of the State of Maryland. The
Company has the corporate power and corporate
authority under its charter and the Maryland
Corporation Law to own, lease and operate its
properties, to execute and deliver, and perform its
obligations under, the Underwriting Agreement, the
applicable Terms Agreement, any Warrant Agreement and
any Indenture; and to conduct its business as
described in the Prospectus. The Company is
authorized to transact business as a foreign
corporation in those states in which the Company owns
Properties either directly or through a partnership
in which the Company is a general partner, as of the
dates of the certificates identified elsewhere in the
opinion letter.
(ii) Each of the Partnerships is a limited
partnership formed, existing and in good standing as
of the date of its respective certificate identified
elsewhere in the opinion letter, under the Delaware
Revised Uniform Limited Partnership Act (the
"Delaware Act"). Each Partnership has the partnership
power and partnership authority under its partnership
agreement and under the Delaware Act to own, lease
and operate its properties and to conduct its
business as described in the Prospectus and to
perform its obligations under this Agreement and any
Terms Agreement. Each of the Partnerships is
qualified or registered as a foreign partnership, as
of the dates of the certificates identified elsewhere
in the opinion letter, in those states in which such
Partnership owns Properties.
(iii) Each of CarrAmerica GP Holdings, Inc.,
Carr Real Estate Services, Inc., Carr Development &
Construction, Inc. and OmniOffices, Inc.
(collectively, the "Significant Subsidiaries") was
incorporated, existing and in good standing as of the
date of its respective certificate identified
elsewhere in the opinion letter under the Delaware
General Corporation Law. Each of the Significant
Subsidiaries has the corporate power and corporate
authority under its charter and the Delaware General
Corporation Law to own, lease and operate its
properties and to conduct its business as described
in the Prospectus.
(iv) If the applicable Underwritten
Securities are Common Stock, Preferred Stock or
Common Stock Warrants, the capital stock of the
Company, as of the date specified in the Prospectus,
was as set forth in the Prospectus under the caption
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"Capitalization." To the knowledge of such counsel,
(A) except for shares reserved for issuance upon the
redemption of Units and upon conversion of
outstanding securities convertible into shares of
Common Stock or as otherwise disclosed in the
Registration Statement, no shares of capital stock of
the Company are reserved for any purpose. To the
knowledge of such counsel, except as described in the
Prospectus, and except in connection with stock or
Unit options and in connection with dividend
reinvestment plans and the possible issuance of
shares of Common Stock upon the redemption of Units
or as otherwise disclosed in the Registration
Statement, there are no outstanding securities
convertible into or exchangeable for any shares of
capital stock of the Company, and no outstanding
options, rights or warrants to purchase or to
subscribe for such shares or any other securities of
the Company or either of the Partnerships. No holder
of outstanding shares of Common Stock has any
preemptive rights described in Section 2-205(a) of
the MGCL, or, to the knowledge of such counsel, any
contractual right to subscribe for any such shares,
except as set forth in the Prospectus.
(v) The applicable Underwritten Securities,
if such Underwritten Securities are Common Stock or
Preferred Stock, have been duly authorized by the
Company for issuance and sale to the Underwriters
pursuant to this Agreement, and, when issued and
delivered by the Company, pursuant to this Agreement
and the applicable Terms Agreement against payment of
the consideration set forth in the Terms Agreement,
will be validly issued, fully paid and non-assessable
under the MGCL. The form of stock certificate to be
used to evidence the applicable Underwritten
Securities is in due and proper form and complies
with all applicable legal requirements.
(vi) The Warrants, if such Underwritten
Securities are Warrants, have been duly authorized by
the Company for issuance and sale to the Underwriters
pursuant to this Agreement and the applicable Terms
Agreement, and, when issued and delivered in the
manner provided for in this Agreement and any Terms
Agreement and countersigned by the Warrant Agent as
provided in the Warrant Agreement against payment of
the consideration set forth in the Terms Agreement,
will be duly executed, countersigned, issued and
delivered and will constitute valid and legally
binding obligations of the Company entitled to the
benefits provided by the Warrant Agreement under
which they are to be issued. The issuance of the
Warrants is not subject to any preemptive rights
described in Section 2-205(a) of the MGCL, or, to the
knowledge of such counsel, and except as described in
the Prospectus, any contractual right to subscribe
for or purchase any such Warrants, Common Stock or
Debt Securities.
(vii) The applicable Underwritten Securities,
if such Underwritten Securities are Debt Securities
and the related Guarantees, if any, are in the form
contemplated in the Indenture, have been duly
authorized by the Company and the Guarantor, as
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<PAGE>
applicable, for issuance and sale to the Underwriters
pursuant to this Agreement and, when executed,
authenticated, issued and delivered in the manner
provided for in this Agreement, the applicable Terms
Agreement and the applicable Indenture, against
payment of the consideration therefor specified in
the applicable Terms Agreement, such Debt Securities
and the related Guarantees, if any, will constitute
valid and legally binding obligations of the Company
or the Guarantor, as applicable, entitled to the
benefits of the Indenture and such Debt Securities
and the related Guarantees, if any, will be
enforceable against the Company or the Guarantor, as
applicable, in accordance with their terms. Such
Underwritten Securities rank and will rank on a
parity with all unsecured indebtedness (other than
subordinated indebtedness of the Company that is
outstanding on the Representation Date or that may be
incurred thereafter) and senior to all subordinated
indebtedness of the Company that is outstanding on
the Representation Date or that may be incurred
thereafter, except that such Underwritten Securities
will be effectively subordinated to the prior claims
of each secured mortgage lender to any specific
Property which secures such lender's mortgage.
(viii) If applicable, the Common Stock
issuable upon exercise of the Common Stock Warrants
or upon conversion of the Debt Securities or
Preferred Stock will have been duly and validly
authorized and reserved for issuance upon such
conversion or exercise by all necessary action and
such stock, when issued upon such conversion or
exercise, will be duly and validly issued, fully paid
and non-assessable, and the issuance of such stock
upon such conversion or exercise will not be subject
to any preemptive rights described in Section
2-205(a) of the MGCL, or, to the knowledge of such
counsel, and except as described in the Prospectus,
any contractual right to subscribe for or purchase
any Common Stock.
(ix) If applicable, the Debt Securities
issuable upon the exercise of the Debt Warrants are
in the form contemplated by the Indenture, have been
duly authorized by the Company for issuance upon
exercise of the Debt Warrants and, when executed,
authenticated, issued and delivered in the manner
provided for in the Debt Warrants and the applicable
Indenture, against payment of the consideration
therefor specified in the Debt Warrants, such Debt
Securities will constitute valid and legally binding
obligations of the Company, entitled to the benefits
of the Indenture and such Debt Securities will be
enforceable against the Company in accordance with
their terms; provided, however, that the
enforceability of the foregoing may be limited by
bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally
and by general equitable principles.
(x) Each of this Agreement and the applicable
Terms Agreement was duly executed and delivered on
behalf of the Company.
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<PAGE>
(xi) The applicable Warrant Agreement, if
any, has been duly executed and delivered by the
Company, and (assuming due authorization, execution
and delivery by the Warrant Agent) constitutes a
valid and legally binding agreement of the Company,
enforceable in accordance with its terms.
(xii) The Indenture has been duly qualified
under the 1939 Act and has been duly executed and
delivered by the Company, and, assuming due
authorization, execution and delivery by the Trustee,
constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms.
The Indenture conforms in all material respects to
the descriptions thereof contained in the Prospectus.
(xiii) The execution, delivery and
performance as of the date hereof of the Underwriting
Agreement, the applicable Terms Agreement, any
Warrant Agreement, any Indenture, any Deposit
Agreement and, if applicable, the Underwritten
Securities, by the Company does not (i) breach or
constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to,
any contract, indenture, mortgage, loan agreement,
note, lease, joint venture or partnership agreement
or other instrument or agreement which has been filed
as an exhibit to the Registration Statement, or (ii)
violate the charter or by-laws of the Transaction
Entities.
(xiv) None of the Company or either of the
Partnerships is an investment company as such term is
defined under the 1940 Act.
(xv) No consent, approval, authorization or
filing with any federal or Maryland or Delaware state
governmental agency or authority is required in
connection with the offering, issuance or sale of the
applicable Underwritten Securities to the
Underwriters in connection with this Agreement or the
applicable Terms Agreement, except such as may be
required under the federal securities laws (certain
matters with respect to which are addressed elsewhere
in the opinion) or state or foreign securities laws
or real estate syndication laws (as to which such
counsel need express no opinion), or such as have
been received or made.
(xvi) The documents incorporated or deemed to
be incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act
(other than the financial statements and related
schedules and financial information and data included
therein or omitted therefrom, as to which no opinion
need be rendered), at the time they were filed with
the Commission, complied as to form in all material
respects with the requirements of the 1934 Act and
the 1934 Act Regulations.
24
<PAGE>
(xvii) The Registration Statement is
effective under the 1933 Act and, to the knowledge of
such counsel, 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 Commission.
(xviii) At the time the Registration
Statement became effective and at the Representation
Date, (A) the Registration Statement and the
Prospectus (except for the financial statements and
supporting schedules and financial information and
data included or incorporated by reference therein or
omitted therefrom, as to which no opinion need be
rendered) complied as to form in all material
respects with the requirements of the 1933 Act and
the 1933 Act Regulations.
(xix) The statements made in the Prospectus
under the headings entitled "Description of Debt
Securities," "Description of Preferred Stock,"
"Description of Common Stock," "Description of
Warrants," "Description of Depositary Shares," and
the information in the applicable Prospectus
Supplement under similar specified sections to the
extent that they describe matters of law or legal
conclusions, have been reviewed by them and is
correct in all material respects.
(xx) To the knowledge of such counsel, except
as otherwise described in the Registration Statement
or in the agreements referred to in an exhibit to
such opinion, there are no persons with registration
or other similar rights to have any securities
registered under the Registration Statement, or to
require the Company to file any other registration
statement, as a result of the offer and sale of the
Underwritten Securities.
The opinions rendered pursuant to clauses (vii), (xi)
and (xii) above may be subject to exceptions regarding
bankruptcy and similar laws, general principles of equity and
other customary exceptions reasonably acceptable to counsel
for the Underwriters.
25
<PAGE>
(2) [INTENTIONALLY OMITTED]
(3) The favorable opinion, dated as of the applicable
Closing Time, of Rogers & Wells LLP, counsel to the
Underwriters, in form and substance satisfactory to the
Underwriters.
(4) In giving their opinions required by subsections
(b)(1) and (b)(3), respectively, of this Section, Hogan &
Hartson L.L.P. and Rogers & Wells LLP shall additionally state
that such counsel has participated in conferences with
officers and other representatives of the Company and the
independent public accountants for the Company at which the
contents of the Registration Statement and the Prospectus and
related matters were discussed and in the preparation of the
Registration Statement and the Prospectus and, on the basis of
the foregoing, nothing has come to their attention that would
lead them to believe that either the Registration Statement or
any amendment thereto (excluding the financial statements and
financial schedules and financial information and data
included or incorporated by reference therein or the Statement
of Eligibility, as to which such counsel need express no
belief), at the time it became effective or at the time an
Annual Report on Form 10-K was filed by the Company with the
Commission (whichever is later), or at the Representation
Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that the Prospectus or any amendment or supplement thereto
(excluding the financial statements or financial schedules and
financial information and data included or incorporated by
reference therein or the Statement of Eligibility, as to which
such counsel need express no belief), at the Representation
Date or at the Closing Time, 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.
In giving their opinions, Hogan & Hartson L.L.P. and
Rogers & Wells LLP may rely upon, or assume the accuracy of,
(A) as to all matters of fact, certificates and written
statements of officers and employees of and accountants for
each of the Company, the Partnerships and the Significant
Subsidiaries and (B) as to the qualification and good standing
of each of the Company, the Partnerships and the Significant
Subsidiaries to do business in any jurisdiction, certificates
of appropriate government officials or opinions of counsel in
such jurisdictions.
Hogan & Hartson L.L.P. shall additionally state that
the Underwriters may rely on their opinion addressed to the
Company, and attached to the Registration Statement as Exhibit
8.1, as if such opinion were addressed to them.
(c) At Closing Time, (i) no action, suit or proceeding at law
or in equity shall be pending or, to the knowledge of the Company and
the Partnerships, threatened against the Company, the Partnerships and
any Subsidiary which would be required to be set forth in the
Prospectus other than as set forth therein; (ii) there shall not have
been, since the date of the applicable Terms Agreement or since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, assets, business
affairs or business prospects of the Company, the Partnerships and the
Subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business; (iii) no proceedings shall be pending
or, to the knowledge of the Company and the Partnerships, threatened
against such entity or any Subsidiary before or by any federal, state
or other commission, board or administrative agency wherein an
26
<PAGE>
unfavorable decision, ruling or finding might result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, assets, business affairs or business prospects of the
Company, the Partnerships and the Subsidiaries, considered as one
enterprise, other than as set forth in the Prospectus; (iv) no stop
order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or threatened by the Commission or by the
state securities authority of any jurisdiction; and (v) the
Representatives shall have received a certificate of the President or a
Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of the Closing Time,
evidencing compliance with the provisions of this subsection (c) and
stating that the representations and warranties in Section 1 hereof are
true and correct with the same force and effect as though expressly
made at and as of Closing Time.
(d) At the time of the execution of the applicable Terms
Agreement, the Representatives shall have received from KPMG Peat
Marwick LLP a letter dated such date, in form and substance
satisfactory to the Representatives, to the effect that: (i) they are
independent public accountants with respect to the Company as required
by the 1933 Act and the 1933 Act Regulations; (ii) it is their opinion
that the financial statements and supporting schedules included in the
Registration Statement, or incorporated by reference therein, and
covered by their opinions therein comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations; (iii) based upon limited procedures set forth in detail in
such letter, including a reading of the latest available interim
financial statements of the Company a reading of the minute books of
the Company inquiries of officials of the Company responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing has come to
their attention which causes them to believe that (A) the unaudited
financial statements of the Company included in the Registration
Statement, or incorporated by reference therein, do not comply as to
form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations and the 1934
Act and the 1934 Act Regulations, or material modifications are
required for them to be presented in conformity with generally accepted
accounting principles, (B) the operating data and balance sheet data
set forth in the Prospectus under the caption "Selected Consolidated
Financial Data" were not determined on a basis substantially consistent
with that used in determining the corresponding amounts in the audited
financial statements included or incorporated by reference in the
Registration Statement, (C) the pro forma financial information
included or incorporated by reference in the Registration Statement was
not determined on a basis substantially consistent with that of the
audited financial statements included or incorporated by reference in
the Registration Statement or did not comply as to form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X and that the pro forma adjustments have not been
properly applied to the historical amounts in the compilations of the
statements or (D) at a specified date not more than five days prior to
the date of the applicable Terms Agreement, there has been any change
in the capital stock of the Company or any increase in the debt of the
Company or any decrease in the net assets of the Company as compared
with the amounts shown in the most recent consolidated balance sheet of
the Company included in the Registration Statement or incorporated by
reference therein, or, during the period from the date of the most
recent consolidated statement of operations included in the
Registration Statement or incorporated by reference therein to a
specified date not more than five days prior to the date of the
applicable Terms Agreement, there were any decreases, as compared with
the corresponding period in the preceding year, in revenues, net income
or funds from operations of the Company except in all instances for
changes, increases or decreases which the Registration Statement and
27
<PAGE>
the Prospectus disclose have occurred or may occur; and (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 in the Registration Statement and Prospectus and which are
specified by the Representatives, and have found such amounts,
percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company
identified in such letter.
(e) At Closing Time, the Representatives shall have received
from KPMG Peat Marwick LLP a letter, dated the Closing Time, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (d) of this Section, except that the "specified
date" referred to shall be a date not more than five days prior to
Closing Time.
(f) At Closing Time, the Underwritten Securities, if such
Underwritten Securities are Preferred Stock, Debt Securities or Debt
Warrants, shall be rated investment grade by one or more nationally
recognized statistical rating organizations and the Company shall have
delivered to the Representatives a letter, dated the Closing Time, from
each such rating organization, or other evidence satisfactory to the
Representatives, confirming that such Underwritten Securities have such
ratings; and since the date of this Agreement, there shall not have
occurred a downgrading in the rating assigned to such Underwritten
Securities or any of the Company's other debt securities by any
nationally recognized securities rating organization, and no such
securities rating organization shall have publicly announced that it
has under surveillance or review, with possible negative implications,
its rating of such Underwritten Securities or any of the Company's
other debt securities.
(g) At Closing Time and at each Date of Delivery, if any,
counsel for the Underwriter shall have been furnished with such
documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the applicable
Underwritten Securities as contemplated herein, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the applicable Underwritten Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the
Representatives and counsel for the Underwriter.
(h) At Closing Time, the Representatives shall have received a
letter agreement from Security Capital Holdings S.A., wherein Security
Capital Holdings S.A. shall agree that during the period specified in
the applicable Prospectus Supplement they and their affiliates will
not, without the prior written consent of Goldman, Sachs & Co. and the
Company (which consent, in the case of the Company, will be subject to
the approval of the Company's unaffiliated directors), directly or
indirectly, sell, offer to sell, grant any option for the sale of,
28
<PAGE>
enter into any agreement to sell, or otherwise dispose of, (i) any
securities of the same class or series or ranking on a parity with any
Underwritten Securities or any security convertible into or
exchangeable for shares of such Underwritten Securities, and (ii) if
such Prospectus Supplement relates to Common Stock Warrants or Debt
Securities or Preferred Stock that is convertible into or exchangeable
for Common Stock, any Common Stock or Units or any security convertible
into or exchangeable for shares of Common Stock. Such transfer
restrictions do not apply to transfers to members of the family of such
director or executive officer (or an entity for their benefit), or to
the granting of a bona fide security interest to a secured party. Any
transferees of such shares, Units or other securities will be likewise
prohibited from making any transfer of shares, Units or other
securities.
(i) In the event that the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Company
contained herein and the statements in any certificates furnished by
the Company hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representatives
shall have received:
(1) A certificate, dated such Date of Delivery, of
the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company
confirming that their respective certificates delivered at
Closing Time pursuant to Section 5(c) hereof remain true and
correct as of such Date of Delivery.
(2) The favorable opinion of Hogan & Hartson L.L.P.
in form and substance satisfactory to counsel for the
Underwriter, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinions required by
Section 5(b)(1) hereof (including the statement of belief
required by Section 5(b)(4) hereof).
(3) The favorable opinion of Rogers & Wells LLP,
counsel for the Underwriter, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date
of Delivery and otherwise to the same effect as the opinion
required by Section 5(b)(3) hereof.
(4) A letter from KPMG Peat Marwick, in form and
substance satisfactory to the Representatives and dated such
Date of Delivery, substantially the same in form and substance
as the letter furnished to the Representatives pursuant to
Section 5(e) hereof, except that the "specified date" in the
letter furnished pursuant to this Section 5(i)(4) shall be a
date not more than five days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Representatives by notice to the Company at any time at or prior to
Closing Time and such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof.
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SECTION 6. Indemnification.
(a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, any
preliminary prospectus, Prospectus, preliminary prospectus supplement or
Prospectus Supplement, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, such preliminary
prospectus, preliminary prospectus supplement or the Prospectus or Prospectus
Supplement, or any such amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Goldman, Sachs & Co. expressly for use under the caption "Plan of
Distribution" or "Underwriting" in the Registration Statement (or any amendment
thereto) or such preliminary prospectus, preliminary prospectus supplement or
the Prospectus or Prospectus Supplement (or any amendment or supplement
thereto).
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the Company
may become subject, under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any preliminary prospectus,
Prospectus, preliminary prospectus supplement or Prospectus Supplement, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, any preliminary prospectus, Prospectus, preliminary prospectus
supplement or Prospectus Supplement, or any such amendment or supplement thereto
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through Goldman, Sachs & Co. expressly for use under
the caption "Plan of Distribution" or "Underwriting" in the Registration
Statement (or any amendment thereto) or such preliminary prospectus, preliminary
prospectus supplement or the Prospectus or Prospectus Supplement (or any
amendment or supplement thereto); and will reimburse the Company or CarrAmerica
L.P., as the case may be, for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
30
<PAGE>
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Underwritten Securities. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and CarrAmerica L.P. on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Underwritten Securities (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault 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 Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
31
<PAGE>
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Underwritten Securities underwritten by it pursuant to
the applicable Terms Agreement and distributed to the public were offered to the
public exceeds the amount of any damages which the Underwriter 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.
(e) The obligations of the Company under this Section 6 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the 1933 Act; and the obligations of the
Underwriters under this Section 6 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the 1933 Act.
SECTION 7. [INTENTIONALLY OMITTED].
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of the
officers of the Company submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any termination of the applicable Terms
Agreement, or any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company and shall survive delivery
of the Underwritten Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) The Representatives may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if either the Company, the Partnerships or the Subsidiaries shall have sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus; or
(ii) if there has been, since the date of such Terms Agreement or since the
respective dates as of which information is given in the Prospectus, any change
in the capital stock or long-term debt of the Company, the Partnerships or the
Subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company, the Partnerships
or the Subsidiaries, otherwise than as set forth or contemplated in the
Prospectus; or (iii) if there has occurred any downgrading in the rating
accorded the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
32
<PAGE>
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities or preferred stock; or (iv) if there has occurred a suspension
or material limitation in trading in securities generally on the New York Stock
Exchange or on the American Stock Exchange or a suspension or material
limitation in trading in the Common Stock on the New York Stock Exchange, or if
a general moratorium on commercial banking activities has been declared by
either Federal, New York or Maryland authorities; or (v) if there has occurred
any outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the effect
of any such event specified in Clause (i), (ii) or (v) of this Section 9(a) in
the judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Underwritten Securities
on the terms and in the manner contemplated in the Prospectus. As used in this
Section 9(a), the term "Prospectus" means the Prospectus together with any
Prospectus Supplement in the form first used to confirm sales of the
Underwritten Securities.
(b) In the event of any such termination, in respect to such
terminated Terms Agreement, (x) the covenants set forth in Section 3 with
respect to any offering of Underwritten Securities shall remain in effect so
long as any Underwriter owns any such Underwritten Securities purchased from the
Company pursuant to the applicable Terms Agreement and (y) the covenant set
forth in Section 3(i) hereof, the provisions of Section 4 hereof, the indemnity
and contribution agreements set forth in Section 6 hereof, and the provisions of
Sections 8 and 13 hereof shall remain in effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time to purchase the Underwritten
Securities which it or they are obligated to purchase under the applicable Terms
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth. If, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10%
of the Underwritten Securities to be purchased pursuant to such Terms
Agreement, each of the non-defaulting Underwriters named in such Terms
Agreement shall be obligated, severally and not jointly, to purchase
the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations
of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
Underwritten Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default under this
Agreement and the applicable Terms Agreement.
In the event of any such default which does not result in a
termination of the applicable Terms Agreement, each of the Representatives or
the Company shall have the right to postpone Closing Time for a period not
33
<PAGE>
exceeding seven days in order to effect any required changes in the Registration
Statement or the Prospectus or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Goldman, Sachs & Co., 85 Broad Street, New
York, New York 10004, attention Registration Department; notices to the Company
shall be directed to 1700 Pennsylvania Avenue, N.W., Washington, D.C. 20006,
attention of Thomas A. Carr.
SECTION 12. Parties. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the parties hereto and
their respective successors. Nothing expressed or mentioned in this Agreement or
the applicable Terms Agreement is intended or shall be construed to give any
person, firm or corporation, other than those referred to in Section 6 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or the applicable Terms Agreement or any
provision herein or therein contained. This Agreement and the applicable Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law and Time. This Agreement and the Terms
Agreement 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 said
State. Specified times of day refer to New York City time.
34
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
CARRAMERICA REALTY CORPORATION
By: /s/ Brian K. Fields
------------------------------
Name: Brian K. Fields
Title: Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
GOLDMAN, SACHS & CO.
/s/ Goldman, Sachs & Co.
- ---------------------------
(Goldman, Sachs & Co.)
<PAGE>
CARRAMERICA REALTY CORPORATION
(a Maryland Corporation)
Senior Notes due 2000
TERMS AGREEMENT
Dated: September 25, 1998
To: CarrAmerica Realty Corporation
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Attention: Chairman of the Board of Directors
Ladies and Gentlemen:
We (the "Representatives") understand that CarrAmerica Realty
Corporation, a Maryland corporation (the "Company"), proposes to issue and sell
$150,000,000 aggregate principal amount of its unsecured debt securities (the
"Debt Securities") (such Debt Securities being collectively hereinafter referred
to as the "Underwritten Securities"). CarrAmerica Realty, L.P. (the "Guarantor")
has agreed to guarantee the Underwritten Securities (the "Guarantees") as to
payments of principal, premium, if any, and interest. With respect to the
issuance and sale of the Debt Securities and the related Guarantees to the
Underwriters, the Guarantor agrees to be jointly and severally liable with the
Company as to the Company's obligations contained in Sections 1,3,4,5 and 6 of
the Underwriting Agreement referred to below, as if the Guarantor were
originally named as a party thereto. Subject to the terms and conditions set
forth or incorporated by reference herein, the underwriters named below (the
"Underwriters") offer to purchase, severally and not jointly, the respective
numbers of Initial Underwritten Securities (as defined in the Underwriting
Agreement referred to below) set forth below opposite their respective names at
the purchase price set forth below.
<PAGE>
Principal Amount
of the
Underwritten
Underwriter Securities
----------- ----------
Goldman, Sachs & Co. ..................................... $100,000,000
Legg Mason Wood Walker, Incorporated. .................... $50,000,000
------------
Total ............................................. $150,000,000
============
2
<PAGE>
The Underwritten Securities shall have the following terms:
Title of Securities: Senior Notes due 2000.
Currency: U.S. Dollars.
Principal amount to be issued: $150,000,000.
Current ratings: Moody's Investors Service, Inc.: Baa3; Standard & Poor's
Corporation: BBB.
Interest rate: 6.625%.
Interest payment dates: Each April 1 and October 1.
Stated maturity date: October 1, 2000.
Redemption or repayment provisions: None.
Delayed Delivery Contracts: Not authorized.
Initial public offering price: 99.914%, plus accrued interest, if any, or
amortized original issue discount, if any, from the date of issuance.
Purchase price: 99.564%, plus accrued interest, if any, or amortized original
issue discount, if any, from the date of issuance (payable in same-day funds).
Other terms: The Underwritten Securities shall be in the form of Exhibit A to
the Supplemental Indenture, dated as of October 2, 1998, among CarrAmerica
Realty Corporation, as Primary Obligor, CarrAmerica Realty, L.P., as Guarantor
and Bankers Trust Company, as Trustee.
Closing date and location: October 2, 1998 at the offices of Rogers & Wells
LLP, 200 Park Avenue, New York, New York 10166.
All the provisions contained in the document entitled "CarrAmerica
Realty Corporation - Common Stock, Preferred Stock, Common Stock Warrants, Debt
Warrants, Depositary Shares and Debt Securities Underwriting Agreement" to which
this Terms Agreement is attached are hereby incorporated by reference in their
entirety herein and shall be deemed to be a part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
3
<PAGE>
Please accept this offer by signing a copy of this Terms Agreement in
the space set forth below and returning the signed copy to us.
Very truly yours,
GOLDMAN, SACHS & CO.
LEGG MASON WOOD WALKER, INCORPORATED
By: GOLDMAN, SACHS & CO.
/s/ Goldman, Sachs & Co.
-------------------------
(Goldman, Sachs & Co.)
Accepted:
CARRAMERICA REALTY CORPORATION
By: /s/ Brian K. Fields
------------------------------
Name: Brian K. Fields
Title: Chief Financial Officer
CARRAMERICA REALTY, L.P.
By: CarrAmerica Realty, G.P. Holdings, Inc., its General Partner
By: /s/ Brian K. Fields
-----------------------------------
Name: Brian K. Fields
Title:
Exhibit 4.1
CARRAMERICA REALTY CORPORATION, AS PRIMARY OBLIGOR,
CARRAMERICA REALTY, L.P., AS GUARANTOR,
AND
BANKERS TRUST COMPANY, AS TRUSTEE
INDENTURE
DATED AS OF OCTOBER 1, 1998
Senior Debt Securities
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION.....................................................................................1
Section 101. Definitions........................................................................1
Section 102. Compliance Certificates and Opinions..............................................13
Section 103. Form of Documents Delivered to Trustee............................................13
Section 104. Acts of Holders...................................................................14
Section 105. Notices, etc., to Trustee and Company.............................................16
Section 106. Notice to Holders; Waiver.........................................................16
Section 107. Effect of Headings and Table of Contents..........................................17
Section 108. Successors and Assigns............................................................17
Section 109. Separability Clause...............................................................17
Section 110. Benefits of Indenture.............................................................17
Section 111. No Personal Liability.............................................................18
Section 112. Governing Law.....................................................................18
Section 113. Legal Holidays....................................................................18
ARTICLE TWO FORMS OF SECURITIES.....................................................................18
Section 201. Forms of Securities...............................................................18
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.....................................................................24
Section 303. Execution, Authentication, Delivery and Dating....................................24
Section 304. Temporary Securities..............................................................26
Section 305. Registration, Registration of Transfer and Exchange...............................29
Section 306. Mutilated, Destroyed, Lost and Stolen Securities..................................32
Section 307. Payment of Interest; Interest Rights Preserved....................................33
Section 308. Persons Deemed Owners.............................................................35
Section 309. Cancellation......................................................................36
Section 310 Computation of Interest............................................................37
ARTICLE FOUR SATISFACTION AND DISCHARGE.............................................................37
Section 401. Satisfaction and Discharge of Indenture...........................................37
Section 402. Application of Trust Funds........................................................38
ARTICLE FIVE REMEDIES...............................................................................38
Section 501. Events of Default.................................................................38
Section 502. Acceleration of Maturity; Rescission and Annulment................................40
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee...................41
Section 504. Trustee May File Proofs of Claim..................................................42
Section 505. Trustee May Enforce Claims Without Possession of Securities or Coupons............43
Section 506. Application of Money Collected....................................................43
Section 507. Limitation on Suits...............................................................43
</TABLE>
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<TABLE>
<S> <C>
Section 508. Unconditional Right of Holders to Receive Principal, Premium or Make-Whole
Amount, if any, Interest and Additional Amounts.......................................44
Section 509. Restoration of Rights and Remedies................................................44
Section 510. Rights and Remedies Cumulative....................................................45
Section 511. Delay or Omission Not Waiver......................................................45
Section 512. Control by Holders of Securities..................................................45
Section 513. Waiver of Past Defaults...........................................................45
Section 514. Waiver of Usury, Stay or Extension Laws...........................................46
Section 515. Undertaking for Costs.............................................................46
ARTICLE SIX THE TRUSTEE..............................................................................47
Section 601. Notice of Defaults................................................................47
Section 602. Certain Rights of Trustee.........................................................47
Section 603. Not Responsible for Recitals or Issuance of Securities............................49
Section 604. May Hold Securities...............................................................49
Section 605. Money Held in Trust...............................................................49
Section 606. Compensation and Reimbursement....................................................50
Section 607. Corporate Trustee Required; Eligibility; Conflicting Interests....................51
Section 608. Resignation and Removal; Appointment of Successor.................................51
Section 609. Acceptance of Appointment by Successor............................................52
Section 610. Merger, Conversion, Consolidation or Succession to Business.......................53
Section 611. Appointment of Authenticating Agent...............................................54
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY......................................56
Section 701. Disclosure of Names and Addresses of Holders......................................56
Section 702. Reports by Trustee................................................................56
Section 703. Reports by Company. The Company will:.............................................56
Section 704. The Company to Furnish Trustee Names and Addresses of Holders. The Company
will furnish or cause to be furnished to the Trustee:.................................57
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE.......................................57
Section 801. Consolidations and Mergers of Company and Sales, Leases and Conveyances
Permitted Subject to Certain Conditions...............................................57
Section 802. Rights and Duties of Successor Entity.............................................57
Section 803. Officers' Certificate and Opinion of Counsel......................................58
ARTICLE NINE SUPPLEMENTAL INDENTURES.................................................................58
Section 901. Supplemental Indentures without Consent of Holders................................58
Section 902. Supplemental Indentures with Consent of Holders...................................60
Section 903. Execution of Supplemental Indentures..............................................61
Section 904. Effect of Supplemental Indentures.................................................61
Section 905. Conformity with TIA...............................................................61
Section 906. Reference in Securities to Supplemental Indentures................................61
Section 907. Notice of Supplemental Indentures.................................................61
</TABLE>
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<TABLE>
<S> <C>
ARTICLE TEN COVENANTS................................................................................62
Section 1001. Payment of Principal, Premium (if any), Make-Whole Amount (if any), Interest
and Additional Amounts................................................................62
Section 1002. Maintenance of Office or Agency..................................................62
Section 1003. Money for Securities Payments to Be Held in Trust................................64
Section 1004. Limitations on Incurrence of Indebtedness........................................65
Section 1005. [Omitted]........................................................................66
Section 1006. Existence........................................................................66
Section 1007. Maintenance of Properties........................................................67
Section 1008. Insurance........................................................................67
Section 1009. Payment of Taxes and Other Claims................................................67
Section 1010. Provision of Financial Information...............................................67
Section 1011. Statement as to Compliance.......................................................68
Section 1012. Additional Amounts...............................................................68
Section 1013. Waiver of Certain Covenants......................................................69
ARTICLE ELEVEN REDEMPTION OF SECURITIES..............................................................69
Section 1101. Applicability of Article.........................................................69
Section 1102. Election to Redeem; Notice to Trustee............................................69
Section 1103. Selection by Trustee of Securities to Be Redeemed................................70
Section 1104. Notice of Redemption.............................................................70
Section 1105. Deposit of Redemption Price......................................................71
Section 1106. Securities Payable on Redemption Date............................................72
Section 1107. Securities Redeemed in Part......................................................73
ARTICLE TWELVE GUARANTEES............................................................................73
Section 1201. Applicability of Article.........................................................73
Section 1202. Guarantees.......................................................................73
Section 1203. Obligations Unconditional........................................................75
Section 1204. Execution of Guarantees..........................................................75
Section 1205. Withholding......................................................................75
Section 1206. Limitation of Guarantees.........................................................76
Section 1207. Release of Guarantees............................................................76
Section 1208. Terms............................................................................77
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS..................................................77
Section 1301. Applicability of Article.........................................................77
Section 1302. Repayment of Securities..........................................................78
Section 1303. Exercise of Option...............................................................78
Section 1304. When Securities Presented for Repayment Become Due and Payable...................79
Section 1305. Securities Repaid in Part........................................................80
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE..................................................80
Section 1401. Applicability of Article; Company's Option to Effect Defeasance or Covenant
Defeasance............................................................................80
Section 1402. Defeasance and Discharge.........................................................80
Section 1403. Covenant Defeasance..............................................................81
Section 1404. Conditions to Defeasance or Covenant Defeasance..................................81
Section 1405. Deposited Money and Government Obligations to be Held in Trust; Other
Miscellaneous Provisions..............................................................83
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES...................................................84
Section 1501. Purposes for which Meetings may be Called........................................84
</TABLE>
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<TABLE>
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Section 1502. Call, Notice and Place of Meetings...............................................84
Section 1503. Persons Entitled to Vote at Meetings.............................................85
Section 1504. Quorum; Action...................................................................85
Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings..............86
Section 1506. Counting Votes and Recording Action of Meetings..................................87
Section 1507. Evidence of Action Taken by Holders..............................................87
Section 1508. Proof of Execution of Instruments................................................88
</TABLE>
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939 (the "1939 Act") and
this Indenture, dated as of October 1, 1998.
Indenture
Trust Indenture Act Section Section
- --------------------------- -------
ss. 310 (a)(1) ...................................................607
(a)(2) ...................................................607
(b) ...................................................607, 608
ss. 312 (c) ...................................................701
ss. 313 (a) ...................................................702
(c) ...................................................702
ss. 314 (a) ...................................................703
(a)(4) ...................................................1011
(c)(1) ...................................................102
(c)(2) ...................................................102
(e) ...................................................102
ss. 315 (b) ...................................................601
ss. 316 (a)(last sentence)...........................................101
("Outstanding")
(a)(1)(A) ...................................................502, 512
(a)(1)(B) ...................................................513
(b) ...................................................508
ss. 317 (a)(l) ...................................................503
(a)(2) ...................................................504
ss. 318 (a) ...................................................111
(c) ...................................................111
NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be part of this Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including 317
of the 1939 Act are a part of and govern every qualified indenture,
whether or not physically contained therein.
<PAGE>
Indenture (this "Indenture"), dated as of October 1, 1998, by and
between CARRAMERICA REALTY CORPORATION, a Maryland corporation, as primary
obligor (the "Company"), CARRAMERICA REALTY, L.P., a Delaware limited
partnership, as guarantor (a "Guarantor"), both having their principal offices
at 1850 K Street, N.W., Washington, D.C. 20006, and BANKERS TRUST COMPANY, a
banking corporation organized under the laws of the State of New York, as
Trustee hereunder (the "Trustee"), having its Corporate Trust Office (as defined
below) at Four Albany Street, New York, New York 10006.
RECITALS
WHEREAS, the Company deems it necessary to issue from time to time for
its lawful purposes senior debt securities (the "Securities") evidencing its
unsecured senior 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.
WHEREAS, 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.
WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company and each Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING, and, in
consideration of the premises and the purchase of the Securities by the Holders
(as defined below) thereof, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as
well as the singular;
(2) all other terms used herein which are defined in the
TIA, either directly or by reference therein, have the
meanings assigned to them therein, 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;
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(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 Indebtedness" means Indebtedness of a Person (i) existing at
the time the Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from the Person, in each case, other than Indebtedness
incurred in connection with, or in contemplation of, the Person becoming a
Subsidiary or that acquisition. Acquired Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Subsidiary.
"Acquisition Lines of Credit" means, collectively, any secured lines of
credit of the Company or any Subsidiary, the proceeds of which are to be used,
among other things, to acquire interests, directly or indirectly, in real
estate.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"Adjusted Total Assets" has the meaning specified in Section 1004.
"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" for any period means the aggregate interest
expense for the period in respect of, and the amortization during the period of
any original issue discount of, Indebtedness of the Company and its Subsidiaries
and the amount of dividends which are payable during the period in respect of
any Disqualified Stock.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
DTC or any successor depositary that apply to such transfer and exchange.
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"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 any Security established pursuant to Section
201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company, or
comparable authority with respect to a Guarantor, as applicable, the executive
committee or any committee of that board or authority duly authorized to act
hereunder, as the case may be.
"Board Resolution" means a copy of a resolution of the Company or a
Guarantor, as applicable, certified by the Secretary or an Assistant Secretary
of the Company or comparable official with respect to a Guarantor, as
applicable, to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"Capital Stock" means, with respect to any Person, any and all shares
(including preferred shares), interests, participations or other equity
ownership interests (however designated, whether voting or non-voting) in the
Person and any rights (other than debt securities convertible into or
exchangeable for corporate Capital 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 Exchange Act, or, if at any time after
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the TIA, then the body performing such duties on
such date.
"Common Depositary" has the meaning specified in Section 304(b).
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"Company" means the Person named as the "Company' in the first
paragraph of this Indenture until a successor Company shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Company.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of and on behalf of the Company by its
Chairman of the Board, its President or a Vice President, and by its Treasurer
or an Assistant Treasurer, its Secretary or an Assistant Secretary, or its Chief
Financial Officer, 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): (i) interest expense on Indebtedness of the Company and
its Subsidiaries; (ii) provision for taxes of the Company and its Subsidiaries
based on income; (iii) amortization of debt discount; (iv) provisions for gains
and losses on properties and property depreciation and amortization; (v) the
effect of any noncash charge resulting from a change in accounting principles in
determining Earnings from Operations for the period; and (vi) amortization of
deferred charges.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Company and its Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at Four Albany
Street, New York, NY 10006; tel.: (212) 250-6161; facsimile: (212) 250-6961.
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of the Person which by the terms of that 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
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(other than Capital Stock which is redeemable solely in exchange for common
stock), (ii) is convertible into or exchangeable or exercisable for Indebtedness
or Disqualified Stock or (iii) is redeemable at the option of the holder
thereof, in whole or in part (other than Capital Stock which is redeemable
solely in exchange for Capital Stock which is not Disqualified Stock or the
redemption price of which may, at the option of that Person, be paid in Capital
Stock which is not Disqualified Stock), in each case on or prior to the Stated
Maturity of the Notes; provided, however, that equity interests whose holders
have (or will have after the expiration of an initial holding period) the right
to have such equity interests redeemed for cash in an amount determined by the
value of the Common Stock of the Company or for shares of the Common Stock of
the Company (including, without limitation, certain equity interests in
CarrAmerica Realty, L.P. and Carr Realty, L.P.) do not constitute Disqualified
Stock.
"DTC" means The Depository Trust Company for so long as it shall be a
clearing agency registered under the Exchange Act, or such successor as the
Company shall designate from time to time in an Officer's Certificate delivered
to the Trustee.
"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.
"Earnings from Operations" for any period means net earnings excluding
gains and losses on sales of investments, extraordinary items, and property
valuation losses, net, as reflected in the financial statements of the Company
and its Subsidiaries for the 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" means any mortgage, lien, charge, pledge or security
interest of any kind.
"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 and any
successor statute thereto, in each case as amended from time to time, and the
rules and regulations of the Commission thereunder.
"Exchange Date" has the meaning specified in Section 304(b).
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"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 in effect
from time to time, as used in the United States applied on a consistent basis;
provided, that solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States 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 obligation or a specific payment of interest on or principal
of any such 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 obligation or the specific payment of interest on or principal of the
obligation evidenced by such depository receipt.
"Guaranteed Obligations" has the meaning specified in Section 1201.
"Guarantees" means the guarantees of the Guarantors, as set forth in
Article Twelve, in one or more supplemental indentures hereto, or in any
additional guarantee of the Securities executed under the terms of this
Indenture.
"Guarantor" means CarrAmerica Realty, L.P. or any other Person that
executes a Guarantee.
"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.
"Indebtedness" 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 indebtedness evidenced by bonds, notes, debentures or similar
instruments, (ii) borrowed money or indebtedness evidenced by bonds, notes,
debentures or similar instruments secured by any Encumbrance existing on
property owned by the Company or any Subsidiary, (iii) reimbursement obligations
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
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services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations under any title retention
agreement, (iv) the amount of all obligations of the Company or any Subsidiary
with respect to redemption, repayment or other repurchase of any Disqualified
Stock, and (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 (iv) 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 of 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), Indebtedness of another Person
(other than the Company or any Subsidiary) (it being understood that
Indebtedness shall be deemed to be incurred by the Company or any Subsidiary
whenever the Company or the Subsidiary shall create, assume, guarantee or
otherwise become liable in respect 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 particular series of Securities for which such Person is Trustee established
as contemplated by Section 331, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1012,
includes such Additional Amounts.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"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.
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"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Non-Recourse Indebtedness" means Indebtedness for which the right of
recovery of the obligee thereof is limited to recourse against the Real Property
Assets securing such Indebtedness (subject to such limited exceptions to the
non-recourse nature of such Indebtedness such as fraud, misappropriation,
misapplication and environmental indemnities, as are usual and customary in like
transactions at the time of the incurrence of such Indebtedness).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President or a Vice-President and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, or equivalent
officials, of the Company or a Guarantor, as applicable, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or a Guarantor, as applicable, or who may be an employee
of or other counsel for the Company or a Guarantor, as applicable, and which
opinion shall be reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the
Holders of such Securities and any coupons appertaining
thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has
effected defeasance and/or covenant defeasance as provided
in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
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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;
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 cause (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed outstanding for such purpose shall be equal to the principal face amount
of such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (iv) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium or Make-Whole Amount, if any) or interest on any
Securities or coupons on behalf of the Company.
"Person" means any individual, corporation, Company, joint venture,
partnership, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of (and premium
or Make-Whole Amount, if any) and interest on such Securities are payable as
specified as contemplated by Sections 1001 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
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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.
"Real Property Assets" means, as of any time, the real property assets
(including interests in participating mortgages in which the interest of the
Company or any Subsidiary therein is characterized as equity according to GAAP)
owned directly or indirectly by the Company or any Subsidiary at such time.
"Recourse Indebtedness" shall mean Indebtedness of the Company or any
Subsidiary that is not Non-Recourse Indebtedness.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security which is registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date", when used with respect to any Security to be repaid
at the option of the Holder, means the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price", when used with respect to any Security to be repaid
at the option of the Holder, means the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant secretary, any assistant treasurer, any trust
officer or any other officer of the Trustee customarily performing functions
similar to those performed by any of the Persons who at the time shall be such
officers, respectively, and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of such
officer's knowledge and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933 and any successor
statute thereto, in each case as amended from time to time, and the rules and
regulations of the Commission thereunder.
"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
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there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means the principal of and interest on, or substantially
similar payments to be made by the Company in respect of, the following, whether
outstanding at the date of execution of this Indenture or thereafter incurred,
created or assumed: (a) indebtedness of the Company for money borrowed or
represented by purchase-money obligations; (b) indebtedness of the Company
evidenced by notes, debentures, or bonds, or other securities issued under the
provisions of an indenture, fiscal agency agreement or other instrument; (c)
obligations of the Company as lessee under leases of property either made as
part of any sale and lease-back transaction to which the Company is a party or
otherwise; (d) indebtedness of partnerships and joint ventures which is included
in the Company's consolidated financial statements; (e) indebtedness,
obligations and liabilities of others in respect of which the Company is liable
contingently or otherwise to pay or advance money or property or as guarantor,
endorser or otherwise or which the Company has agreed to purchase or otherwise
acquire; and (f) any binding commitment of the Company to fund any real estate
investment or to fund any investment in any entity making such real estate
investment; but excluding, however, (1) any such indebtedness, obligation or
liability referred to in clauses (a) through (f) above as to which, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such indebtedness, obligation or liability is
not superior in right of payment to the Securities, or ranks pari passu with the
Securities, (2) any such indebtedness, obligation or liability which is
subordinated to indebtedness of the Company to substantially the same extent as
or to a greater extent than the Securities are subordinated and (3) the
Securities. As used in the preceding sentence, the term "purchase-money
obligations" shall mean indebtedness or obligations evidenced by a note,
debenture, bond or other instrument (whether or not secured by any lien or other
security interest but excluding indebtedness or obligations for which recourse
is limited to the property purchased) issued or assumed as all or a part of the
consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise, but shall not include any trade accounts payable. A
distribution may consist of cash, securities or other property.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act) of the Company or a Guarantor.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
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fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation, partnership or other entity a
majority of the voting power of the voting equity securities or the outstanding
equity interests of which are owned, directly or indirectly, by the Company, a
Guarantor or by one or more other Subsidiaries of the Company or a Guarantor.
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) Undepreciated Real
Estate Assets and (ii) all other assets of the Company and its Subsidiaries on a
determined in accordance with GAAP (but excluding intangibles).
"Total Unencumbered Assets" means the sum of (i) those Undepreciated
Real Estate Assets not subject to an Encumbrance for borrowed money and (ii) all
other assets of the Company and its Subsidiaries not subject to an Encumbrance
for borrowed money determined in accordance with GAAP (but excluding
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 has become such pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee" means
or includes each Person who is then a Trustee hereunder; provided, however, that
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean only the Trustee with respect
to Securities of that series.
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Company
and its Subsidiaries on such date, before depreciation and amortization
determined on a consolidated basis in accordance with GAAP.
"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, Company 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 Indebtedness" means Indebtedness which is not secured by any
Encumbrance upon any of the properties of the Company or any Subsidiary.
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"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
Section 102. Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1011) 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
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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 acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
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(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, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(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.
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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,
(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, 1850 K Street, N.W.,
Washington, D.C. 20006, tel.: (202) 729-7500, facsimile: (202)
729-1080, or at any other address previously furnished in
writing to the Trustee by the Company, or
(3) the Guarantor 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 Guarantor addressed to it at the
address of its principal office, 1850 K Street, N.W.,
Washington, D.C. 20006, tel.: (202) 729-7500, facsimile: (202)
729-1080, or at any other address previously furnished in
writing to the Trustee by the Guarantor.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency
of any notice to Holders of Bearer Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in The City
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of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 107. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall be
binding on their 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, in the Securities or coupons, express or
implied, shall give to any Person, other than the Parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their successors
hereunder and the Holders any benefit or any legal or equitable right, remedy or
claim under this Indenture.
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Section 111. No Personal Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any Security or coupon appertaining thereto, or
because of any indebtedness evidenced thereby, shall be had against any
promoter, as such, or against any past, present or future shareholder, officer
or director, as such, of the Company or any Guarantor or of any successor
thereof, either directly or through the Company or any Guarantor or any
successor thereof, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
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.
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.
ARTICLE TWO
FORMS OF SECURITIES
Section 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the forms as shall be established in one or more indentures supplemental hereto
or approved from time to time by or pursuant to a Board Resolution in accordance
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with this Indenture, 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.
Bankers Trust Company, 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
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been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (15) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other
series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of,
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or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 303, 304, 305, 306, 906, 1107 or
1305);
(3) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities
of the series shall be payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or
rates shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or
dates shall be determined, the Interest Payment Dates on which
such interest will be payable and the Regular Record Date, if
any, for the interest payable on any Registered Security on
any Interest Payment Date, or the method by which such date
shall be determined, and the basis upon which interest shall
be calculated if other than that of a 360-day year of twelve
30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, 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 the series shall be payable, any
Registered Securities of the series may be surrendered for
registration of transfer, exchange or conversion and notices
or demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices
(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 the series may be
redeemed, in whole or in part, at the option of the Company,
if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any provision or
at the option of a Holder thereof, and the period or periods
within which or the date or dates on which, the price or
prices at which, the currency or currencies, currency unit or
units or composite currency or currencies in which, and other
terms and conditions upon which Securities of the series shall
be redeemed, repaid or purchased (including, without
limitation, whether, and the extent to which, the premium
shall be payable in connection therewith), in whole or in
part, pursuant to such obligation.
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered
Securities of the series shall be issuable and, if other than
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the denomination of $5,000, the denomination or denominations
in which any Bearer Securities of the series shall be
issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502 or, if applicable, the portion
of the principal amount of Securities of the series that is
convertible in accordance with the provisions of this
Indenture, or the method by which such portion shall be
determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium or Make-Whole
Amount, if any) or interest or Additional Amounts, if any, on
the Securities of the series shall be payable or in which the
Securities of the series shall be denominated;
(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 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 the series are to be payable, at the election of
the Company, or a Holder thereof, in a currency or currencies,
currency unit or units or composite currency or currencies
other than that in which such Securities are denominated or
stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be
made, and the time and manner of, and identity of the exchange
rate agent with responsibility for, determining the exchange
rate between the currency or currencies, currency unit or
units or composite currency or currencies in which such
Securities are denominated or stated to be payable and the
currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are to be so
payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as
may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to
Securities of the series, whether or not such Events of
Default or covenants are consistent with the Events of Default
or covenants set forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without
coupons) or both, any restrictions applicable to the offer,
sale or delivery of Bearer Securities and the terms upon which
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Bearer Securities of the series may be exchanged for
Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any
Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series
are to be issuable in permanent global form with or without
coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests
for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the
manner provided in Section 305, and, if Registered Securities
of the series are to be issuable as a global Security, the
identity of the depositary for such series;
(17) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date
of original issuance of the first Security of the series to be
issued;
(18) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose
name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date
for such interest, the manner in which, or the Person to whom,
any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of
the coupons appertaining thereto as they severally mature, and
the extent to which, or the manner in which, any interest
payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in
Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification
of, in addition to or in lieu of any of the provisions of
Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange
of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of
other conditions, then the form and/or terms of such
certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1012 on the
Securities of the series to any Holder who is not a United
States person (including any modification to the definition of
such term) in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such Additional Amounts
(and the terms of any such option);
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(23) whether and to what extent the Securities of the series are to
be guaranteed by one or more Subsidiaries or other Persons in
addition to CarrAmerica Realty, L.P.;
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the Company on behalf 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 a denomination of $5,000.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed
by the Company's Chairman of the Board, Chief Financial Officer, President,
Secretary or one of its Vice Presidents. The signature of any of these officers
on the Securities and coupons may be manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or otherwise
reproduced on the Securities. Securities or coupons bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the 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
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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. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such 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 established in conformity
with the provisions of this Indenture;
(b) the terms of such Securities and any coupons
have been established in conformity with the
provisions of this Indenture; and
(c) such Securities, together with any coupons
appertaining thereto, when completed by
appropriate insertions and executed and
delivered by the Company to the Trustee for
authentication in accordance with this
Indenture, authenticated and delivered by
the Trustee in accordance with this
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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
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the
issuance of the Securities have been complied with and that,
to the best of the knowledge of the signers of such
certificate, that no Event of Default with respect to any of
the Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or a Company Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
Section 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order, the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
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substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form other than through the facilities of The
Depository Trust Company. If any such temporary Security is issued in global
form, then such temporary global Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or common depositary
(the "Common Depositary"), for the benefit of Euroclear and CEDEL, for credit to
the respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
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however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his
behalf and delivers to Euroclear or CEDEL, as the case may be, a certificate in
the form set forth in Exhibit A-1 to this Indenture (or in such other form as
may be established pursuant to Section 301), dated no earlier than 15 days prior
to the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise specified
in such temporary global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
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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 by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers' Certificate, or
in any indenture supplemental hereto, delivered as contemplated by Section 301,
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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 such payment; provided,
however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in
part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor
to DTC for such global Security selected or approved by the Company or to a
nominee of such successor to DTC. If at any time DTC notifies the Company that
it is unwilling or unable to continue as depositary for the applicable global
Security or Securities or if at any time DTC ceases to be a clearing agency
registered under the 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
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continuing and the beneficial owners representing a majority in principal amount
of the applicable series of Securities represented by such global Security or
Securities advise DTC to cease acting as depositary for such global Security or
Securities or (z) the Company, in its sole discretion, determines at any time
that all Outstanding Securities (but not less than all) of any series issued or
issuable in the form of one or more global Securities shall no longer be
represented by such global Security or Securities, then the Company shall
execute, and the Trustee shall authenticate and deliver definitive Securities of
like series, rank, tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such global Security or Securities. If
any beneficial owner of an interest in a permanent global Security is otherwise
entitled to exchange such interest for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable notice
provided in the permanent global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Company shall execute, and the Trustee
shall authenticate and deliver, definitive Securities in aggregate principal
amount equal to the principal amount of such beneficial owner's interest in such
permanent global Security. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be surrendered for
exchange by DTC or such other depositary as shall be specified in the Company
Order with respect thereto to the Trustee, as the Company's agent for such
purpose; provided, however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
to be redeemed and ending on the relevant Redemption Date if the Security for
which exchange is requested may be among those selected for redemption; and
provided further that no Bearer Security delivered in exchange for a portion of
a permanent global Security shall be mailed or otherwise delivered to any
location in the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the 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.
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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, the Trustee or the Security Registrar, 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 appropriate cases, such security or indemnity as may be required by the
Company or the Trustee to hold 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
hold 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 the
Company's 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.
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Notwithstanding the provisions of the immediately preceding 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, by transfer to an account maintained by the payee with a bank
located outside the United States.
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Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a
special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment
(which shall not be less than 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
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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 none of the Company, the
Trustee or any agent of the Company or the Trustee shall be affected by notice
to the contrary.
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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 none of the Company, the
Trustee or 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 canceled 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 canceled 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
canceled as provided in this Section, except as expressly permitted by this
Indenture. Canceled 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 the Company Order, the Company directs
their return to it.
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Section 310 Computation of Interest.
Except as otherwise specified as contemplated by Section 301 with
respect to Securities of any series, interest on the Securities of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to any series of Securities specified in such Company Request
(except as to any surviving rights of registration of transfer or exchange of
Securities of such series herein expressly provided for and any right to receive
Additional Amounts, as provided in Section 1012), and the Trustee, upon receipt
of a Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when,
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is not
required or has been waived as provided in Section 305, (ii) Securities and
coupons of such series which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust (as provided in
Section 1003)) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
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(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 to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture as to
such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Funds.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium or Make-Whole Amount, if any), and any interest and Additional Amounts
for whose payment such money has deposited with or received by the Trustee, but
such money need not be segregated from other funds except to the extent required
by law.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default," wherever used herein with respect to any particular
series of Securities, means any one of the following events (whatever the reason
for such Event of Default and whether or not it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
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(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of that series or of any coupon
appertaining thereto, when such interest, Additional Amounts or coupon becomes
due and payable, and continuance of such default for a period of 30 days; 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 it becomes due
and payable at its Maturity, upon redemption, upon declaration or otherwise; or
(3)(i) default in the performance, or breach, of any covenant or
warranty on the part of the Company or any Guarantor in this Indenture with
respect to any Security of that series (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), or (ii) the failure of any Subsidiary to comply with
the provisions in Section 1004, and, in each case, continuance of such default
or breach for a period of 60 days after there has been given, by registered or
certified mail to the Company and the Guarantors, by the Trustee or to the
Company, the Guarantors 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
(4) default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company, any Guarantor or any Subsidiary
(including obligations under leases required to be capitalized on the balance
sheet of the lessee under GAAP), representing Recourse Indebtedness or
indebtedness guaranteed by such party in an aggregate principal amount in excess
of $5,000,000, or under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any indebtedness for
money borrowed by the Company, any Guarantor or any Subsidiary (including the
leases) in an aggregate principal amount in excess of $5,000,000, whether the
indebtedness now exists or shall hereafter be created, which default shall have
resulted in the indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable, or the
obligations being accelerated, without the acceleration having been rescinded or
annulled; or
(5) the Company, the Guarantor 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
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(D) makes a general assignment for the benefit of its
creditors; or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company, a Guarantor or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company, a Guarantor or any
Significant Subsidiary for all or substantially all of its property, or
(C) orders the liquidation of the Company, a Guarantor or any
Significant Subsidiary, and the order or decree remains unstayed and in effect
for 90 days;
(7) the Guarantee of any Security by a Guarantor ceases to be, or is
asserted by the Company or such Guarantor not to be, in full force and effect or
enforceable in accordance with its terms (other than by reason of the
termination of this Indenture or the release of such Guarantee in accordance
with this Indenture); or
(8) any other Event of Default provided with respect to Securities of
that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11,
U.S. Code or any similar Federal or State law for the relief of debtors and the
term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
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 premium or
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, and
premium and Make-Whole Amount (if any), or specified portion thereof shall
become immediately due and payable. If an Event of Default with respect to the
Securities of any series set forth in Section 501(5) or (6) of this Indenture
occurs and is continuing, then in every such case all the Securities of that
series shall become immediately due and payable, without notice to the Company,
at the principal amount thereof plus accrued interest to the date the Securities
of that series are paid plus any Make-Whole Amount due on the Securities of that
series.
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:
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(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, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium 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 upon
redemption, upon dedication or otherwise, 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.
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If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company, or any other obligor upon such Securities 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 property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized by each
Holder of Securities of such series or 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.
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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 in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium or
Make-Whole Amount, if any) or interest and any Additional Amounts, upon
presentation of the Securities or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
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 Person or
Persons entitled thereo.
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:
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(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee 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.
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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
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(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, any Event of
Default arising therefrom shall be deemed to have been cured, and for every
purpose of this Indenture, the Company, Trustee and Holders shall be restored to
their former positions and rights hereunder; 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 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). The Company agrees to pay
or reimburse the Trustee for paying all reasonable costs and expenses (including
reasonable counsels' fees) of the Trustee in connection with (a) any default and
any enforcement or collection proceedings resulting therefrom and (b) the
enforcement of this Section 515.
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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 a committee of trust 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(3) 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) except during the continuance of an Event of Default, the Trustee
shall perform only such duties as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this Indenture
against the Trustee;
(2) in case a default or an Event of Default has occurred and is
continuing of which a Responsible Officer of the Trustee has received written
notice from the Company, any other obligor of the Securities or by any Holder,
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent Person would exercise or use under the circumstances in the conduct of
his own affairs;
(3) 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;
(4) 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
Directors may be sufficiently evidenced by a Board Resolution;
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(5) 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;
(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
security or indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(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) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirement of this Indenture;
(9) 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
(10) no provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(a) this paragraph (10) shall not be construed to limit the
effect of paragraph (1) of this Section;
(b) the Trustee shall not be liable for any errors of judgment
or any acts, omissions, mistakes of fact or law taken or omitted in good faith
by a Responsible Officer, unless it shall be proved that the Trustee was
negligent;
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in aggregate principal amount of the
Outstanding Securities of such series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture; and
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(d) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(11) Whether nor not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
The permissive right of the Trustee to do the things enumerated in this
Indenture shall not be construed as a duty, and the Trustee shall not be
answerable for other than its negligence or willful misconduct.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
Section 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company or the Guarantor and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity, legality or sufficiency of
this Indenture or of the Securities or coupons or any other contracts referred
to herein to which the Company or the Guarantor is a party, 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 the 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.
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Section 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee have agreed upon in writing 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, if any, incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith;
(3) to indemnify each of the Trustee (which for purposes of this
Section 606(3) shall include its directors, officers, employees and agents) and
any predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its own part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder; and
(4) to pay the reasonable fees and expenses of White & Case in
connection with the preparation, execution and delivery of this Indenture, no
later than five (5) business days of its execution.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Holders of 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.
Notwithstanding any provision in this Indenture, the Trustee's right to
immunities and protection from liability hereunder and its rights to payment of
its fees, expenses and indemnities shall survive its resignation or removal and
the final payment or defeasance of the Securities and the termination of the
Indenture and all indemnification and releases from liability granted herein
shall extend to its directors, officers, employees and agents.
The provisions of this Section shall survive the termination of this
Indenture.
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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 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 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.
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(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
or 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 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.
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(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 of coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
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Section 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, except upon original
issuance or in replacement of mutilated, lost, stolen or destroyed Securities,
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. Except upon
original issuance or in replacement of mutilated, lost, stolen or destroyed
Securities, wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a bank or trust company or corporation organized and doing business and
in good standing 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 a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
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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 the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Bankers Trust Company, as Trustee
By: ____________________________________,
as Authenticating Agent
By: ____________________________________,
Authorized Signatory
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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 June 30 of each year commencing with the first
June 30 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 June 30 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 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.
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Section 704. The Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in Writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished, provided, however, that, so long as the Trustee is the
Security Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 801. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions.
The Company may consolidate with, or sell, lease or convey all
or substantially all of its assets to, or merge with or into any other entity,
provided that in any such case, (1) the Company shall be the continuing entity,
or the successor entity shall be an entity 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 performance and observance of all of the
obligations, 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
entity and (2) immediately after giving effect to such transaction and treating
any indebtedness which becomes an obligation of the Company or any Subsidiary as
a result thereof as having been incurred by the Company or such Subsidiary at
the time or 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 Entity.
In case of any consolidation, merger, sale, lease or conveyance
permitted under Section 801 and upon any 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 Company and the
predecessor entity, except in the event of a lease, shall be relieved of any
further obligation under this Indenture and the Securities. Any such successor
entity of the Company 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
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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 from the
Company with respect to Section 801 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 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company or a
Guarantor and the assumption by any such successor of the covenants of the
Company or the Guarantor 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
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(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 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 provision;
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; 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 provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such provisions shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons in any material
respect; or
(10) to add a Guarantor; 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 that any such action shall not adversely affect the interests of the
Holders of Securities of such series and any related coupons or any other series
of Securities in any material respect.
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Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution and by the
Guarantors, 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
or any Additional Amounts payable in respect thereof, any Security; or reduce
the principal amount thereof or the rate or amount of interest thereon, or any
premium payable upon the redemption thereof, or change any obligation of the
Company to pay Additional Amounts pursuant to Section 1012 (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 that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of repayment
at the option of the Holder of any Security, or change any Place of Payment
where, or the currency or currencies, currency unit or units or composite
currency or currencies in which, any Security or any premium or Make-Whole
Amount 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 1013, 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, or
(4) release a Guarantor from its Guarantee.
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.
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A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution and delivery of any supplemental indenture under
this Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupon appertaining thereto shall be bound thereby.
Section 905. Conformity with TIA.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the TIA as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the 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.
Section 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
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ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium (if any), 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 1012 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 of transfer, where
Securities of that series may be surrendered for exchange, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment or conversion in the
circumstances described in the following paragraph (and not otherwise); (B)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series which is located outside the United States, an office or agency
where Securities of that series and related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Securities of that series pursuant to Section 1012) or conversion; provided,
however, that if the Securities of that series are listed on the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company will maintain a Paying Agent
for the Securities of that series in Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
of that series are listed on such exchange; and (C) subject to any laws or
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regulations applicable thereto, in a Place of Payment for that series located
outside the United States an office or agency where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series pursuant to Section 1012) or conversion at the offices specified in
the Security, in London, England, and the Company hereby appoint the same as its
agent to receive such respective presentations, surrenders, notices and demands,
and the Company hereby appoint the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States; provided, however, that, if the Securities of a series are payable in
Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any Additional Amounts payable on Securities of such series
pursuant to Section 1012) 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, or Make-Whole
Amount, interest or Additional Amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities pursuant to Section 301 with respect to a series of Securities,
the Company hereby designates as a Place of Payment for each series of
Securities the office or agency of the Company in the Borough of Manhattan, 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.
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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.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium or Make-Whole Amount, if any), or interest
on or Additional Amounts in respect of, any Securities of that series, deposit
with a Paying Agent a sum (in the currency or currencies, currency unit or units
or composite currency or currencies described in the preceding paragraph)
sufficient to pay the principal (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest
or Additional Amounts and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will
(1) hold all sums held by it for the payment of principal of (or
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 trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
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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 Additional Amounts in respect of, any Security of any
series and remaining unclaimed for two years after such principal (or premium or
Make-Whole Amount, if any) or 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 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 Indebtedness.
(a) Neither the Company nor any Subsidiary will incur any Indebtedness
if, immediately after giving effect to the incurrence of that additional
Indebtedness and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Indebtedness 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 Total Assets of the
Company and its Subsidiaries 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 the filing is
not permitted under the Exchange Act, with the Trustee) prior to the incurrence
of the additional Indebtedness 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 the proceeds were not used to
acquire real estate assets or mortgages receivable or used to reduce
Indebtedness), by the Company or any Subsidiary since the end of the calendar
quarter, including those proceeds obtained in connection with the incurrence of
the additional Indebtedness.
(b) Neither the Company nor any Subsidiary will incur any Indebtedness
secured by any Encumbrance upon any of the property of the Company or any
Subsidiary if, immediately after giving effect to the incurrence of the
additional Indebtedness and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Indebtedness of the Company and
its Subsidiaries on a consolidated basis which is secured by any Encumbrance on
property of the Company or any Subsidiary is greater than 40% of the sum of
(without duplication) (i) the Total Assets of the Company and its Subsidiaries
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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 the filing is not permitted under the Exchange
Act, with the Trustee) prior to the incurrence of the additional Indebtedness
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 the proceeds were not used to acquire real estate assets or
mortgages receivable or used to reduce Indebtedness), by the Company or any
Subsidiary since the end of the calendar quarter, including those proceeds
obtained in connection with the incurrence of the additional Indebtedness.
(c) 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 Indebtedness of the Company and its
Subsidiaries on a consolidated basis.
(d) Neither the Company nor any Subsidiary will incur any Indebtedness
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 the additional Indebtedness 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) the Indebtedness and any other Indebtedness incurred by the Company and
its Subsidiaries since the first day of the four-quarter period and the
application of the proceeds therefrom, including to finance other Indebtedness,
had occurred at the beginning of the period, (ii) the repayment or retirement of
any other Indebtedness by the Company and its Subsidiaries since the first day
of the four-quarter period had been repaid or retired at the beginning of that
period (except that, in making the computation, the amount of Indebtedness under
any revolving credit facility shall be computed based upon the average daily
balance of the Indebtedness during that period), (iii) in the case of Acquired
Indebtedness or Indebtedness incurred in connection with any acquisition since
the first day of the four-quarter period, the related acquisition had occurred
as of the first day of the period with the appropriate adjustments with respect
to the acquisition being included in the 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 the four-quarter period, whether
by merger, stock purchase or sale, or asset purchase or sale, the acquisition or
disposition and any related repayment of Indebtedness had occurred as of the
first day of the period with the appropriate adjustments with respect to the
acquisition or disposition being included in the pro forma calculation.
Section 1005. [Omitted].
Section 1006. 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 the existence,
rights and franchises of itself and of each Guarantor; provided, however, that
the Company shall not be required to preserve any right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and the Guarantors taken
as a whole and that the loss thereof is not disadvantageous in any material
respect to the Holders.
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Section 1007. Maintenance of Properties.
The Company will cause all of its material 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 the Company and its Subsidiaries shall not be prevented from
discontinuing the operation and maintenance of any such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business and not disadvantageous in any material respect to the Holders.
Section 1008. Insurance.
The Company will, and will cause each of its Subsidiaries to, keep all
of its insurable properties insured against loss or damage in amounts and types
as are commercially reasonable
Section 1009. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or any Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
Section 1010. Provision of Financial Information.
Whether or not the Company is subject to Section 13 or 15(d) of the
Exchange Act, the Company will, to the extent permitted under the Exchange Act,
file with the Commission the annual reports, quarterly reports and other
documents which the Company would have been required to file with the Commission
pursuant to such Section 13 or 15(d) (the "Financial Statements") if the Company
were so subject, such documents to be filed with the Commission on or prior to
the respective dates (the "Required Filing Dates") by which the Company would
have been required so to file such documents if the Company were so subject.
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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 would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if the Company were subject to such Sections, and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant to Section
13 or 15(d) of the 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 1011. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Company's and each Guarantor'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 1011, such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture.
Section 1012. 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 in this
Indenture. Whenever in this Indenture there is mentioned, in any context except
in the case of Section 502(1), the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided by the terms of such series established
pursuant to this Indenture to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to such terms
and express mention of the payment of Additional Amounts (if applicable) in any
provisions hereof shall not be construed as excluding Additional Amounts in
those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
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Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. If the Trustee or any Paying Agent, as the case may be,
shall not so receive the above-mentioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of a series or related coupons until it shall have
received a certificate advising otherwise and (ii) to make all payments of
principal and interest with respect to the Securities of a series or related
coupons without withholding or deductions until otherwise advised. The 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 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 1013. 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 1010, inclusive, if
before or after the time for such compliance the Holders of at least a majority
in principal amount of all outstanding Securities of such series, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of less than all of the Securities of any series, the Company
shall, at least 45 days prior to the giving of the notice of redemption in
Section 1104 (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
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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,
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(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, 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 and the Trustee for
such series and any Paying Agent is furnished,
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on this Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(9) the CUSIP number of such Security, if any, and
(10) 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, 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.
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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 or Make-Whole
Amount, if any) shall, until paid, bear interest from the Redemption Date at the
rate borne by the Security.
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Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part (pursuant
to the provisions of this Article) shall be surrendered at a Place of Payment
therefor (with, if the
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
GUARANTEES
Section 1201. Applicability of Article.
If applicable, the guarantee of any series of securities shall be
established in accordance with Section 301 and in accordance with this Article.
Section 1202. Guarantees.
Subject to the provisions of this Article Twelve, each Guarantor hereby
jointly and severally, fully, unconditionally and irrevocably guarantees to each
Holder and to the Trustee on behalf of the Holders: (i) the due and punctual
payment of the principal of, premium, if any, and accrued interest on each
Security, when and as the same shall become due and payable, whether at
maturity, by acceleration or otherwise, the due and punctual payment of interest
on the overdue principal of and interest, if any, on the Securities, to the
extent lawful, and the due and punctual performance of all other obligations of
the Company to the Holders or the Trustee, all in accordance with the terms of
such Security and this Indenture and (ii) in the case of any extension of time
of payment or renewal of any Securities or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, at Stated Maturity, by acceleration or
otherwise (the obligations in subsections (i) and (ii) hereof being the
"Guaranteed Obligations"). Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of merger or
bankruptcy of the Company, any right to require a proceeding first against the
Company, the benefit of discussion, protest or notice with respect to any such
Security or the debt evidenced thereby and all demands whatsoever, and covenants
that its Guarantee will not be discharged as to any such Security except by
payment in full of the principal thereof and interest thereon and as provided in
Section 401, Section 1402 and Section 1403. The maturity of the Securities may
be accelerated as provided in Article Five for the purposes of this Article
Twelve. In the event of any declaration of acceleration of such obligations as
provided in Article Five, the Securities (whether or not due and payable) shall
forthwith become due and payable by each Guarantor jointly and severally, for
the purpose of this Article Twelve. In addition, without limiting the foregoing
provisions, upon the effectiveness of an acceleration under Article Five, the
Trustee shall promptly make a demand for payment on the Securities under each
Guarantee provided for in this Article Twelve.
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If the Trustee or the Holder of any Security is required by any court
or otherwise to return to the Company or any Guarantor, or any custodian,
receiver, liquidator, trustee, sequestrator or other similar official acting in
relation to the Company or such Guarantor, any amount paid to the Trustee or
such Holder in respect of a Security, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor further
agrees, to the fullest extent that it may lawfully do so, that, as between it,
on the one hand, and the Holders and the Trustee, on the other hand, the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Five hereof for the purposes of its Guarantee, notwithstanding any stay,
injunction or other prohibition extant under any applicable bankruptcy law
preventing such acceleration in respect of the obligations guaranteed hereby.
Each Guarantor hereby further agrees that its obligations under this
Indenture and the Securities shall be unconditional, regardless of the validity,
regularity or enforceability of this Indenture or the Securities, the absence of
any action to enforce this Indenture or the Securities, any waiver or consent by
any Holder with respect to any provisions of this Indenture or the Securities,
any modification or amendment of, or supplement to, this Indenture or the
Securities, the recovery of any judgment against the Company or any action to
enforce any such judgment, or any other circumstance that might otherwise
constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor that makes or is required to make any payment in respect
of its Guarantee shall be entitled to seek contribution from the other
Guarantors to the extent permitted by applicable law; provided that each
Guarantor agrees that any such claim for contribution that such Guarantor may
have against any other Guarantor shall be subrogated to the prior payment in
full, in cash, of all obligations owed to Holders under or in respect of the
Securities.
Each Guarantor hereby irrevocably waives any claim or other rights that
it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of its obligations under its
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Holders against the Company
or any collateral that any such Holder or the Trustee on behalf of such Holder
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including, without limitation, the
right to take or receive from the Company, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim or other rights. If any amount shall be paid to any
Guarantor in violation of the preceding sentence and the principal of (and
premium, if any) and interest on the Securities shall not have been paid in
full, such amount shall be deemed to have been paid to such Guarantor for the
benefit of, and held in trust for the benefit of, the Holders, and shall
forthwith be paid to the Trustee for the benefit of the Holders to be credited
and applied upon the principal of (and premium, if any) and interest on the
Securities. Each Guarantor acknowledges that it will receive direct and indirect
benefits from the issuance of the Securities pursuant to this Indenture and that
the waivers set forth in this Section 1202 are knowingly made in contemplation
of such benefits.
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Each Guarantee set forth in this Section 1202 shall not be valid or
become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.
Section 1203. Obligations Unconditional.
Subject to Section 1206, nothing contained in this Article Twelve or
elsewhere in this Indenture or in the Securities is intended to or shall impair,
as among each Guarantor and the Holders, the obligation of each Guarantor, which
is absolute and unconditional, upon failure by the Company, to pay to the
Holders the principal of (and premium, if any) and interest on the Securities as
and when the same shall become due and payable in accordance with their terms,
or is intended to or shall affect the relative rights of the Holders and
creditors of each Guarantor, nor shall anything herein or therein prevent any
Holder or the Trustee on its behalf from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture.
Without limiting the foregoing, nothing contained in this Article
Twelve will restrict the right of the Trustee or the Holders to take any action
to declare the Guarantee to be due and payable prior to the Stated Maturity of
the Securities pursuant to Section 502 or to pursue any rights or remedies
hereunder.
Section 1204. Execution of Guarantees.
To evidence its obligations under this Article Twelve, each Guarantor
hereby agrees to execute a guarantee in a form set forth in the supplemental
indenture or Officers' Certificate for each series of Securities guaranteed by
the Guarantor, to be endorsed on each Security authenticated and delivered by
the Trustee. The signature of any officer of a Guarantor on the Securities may
be manual or facsimile. Each Guarantor hereby agrees that its Guarantee set
forth in this Article Twelve shall remain in full force and effect
notwithstanding any failure to endorse such Guarantee on any series of
Securities.
Section 1205. Withholding.
All payments made by a Guarantor with respect to the Guarantees will be
made without withholding or deduction for, or on account of, any present or
future taxes, duties, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of any country (other than the United States)
or any political subdivision thereof or any authority therein or thereof having
power to tax, unless the withholding or deduction of such taxes, duties,
assessments or governmental charges is then required by law. In the event that
any country (other than the United States) or any political subdivision thereof,
or any authority therein or thereof, imposes any such withholding or deduction
on (a) any payments made by a Guarantor with respect to the Guarantees or (b)
any net proceeds on the sale to or exchange with any Guarantor of the
Securities, such Guarantor will pay such additional amounts as may be necessary
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in order that the net amounts received in respect to such payments or sale or
exchange by the Holders or the Trustee, as the case may be, after such
withholding or deduction shall equal the respective amounts that would have been
received in respect of such payments or sale or exchange in the absence of such
withholding or deduction; except that no such additional amounts shall be
payable with respect to any series of Securities held by or on behalf of a
Holder who is liable for such taxes, duties, assessments or governmental charges
in respect of such Security by reason of his being a citizen or resident of, or
carrying on a business in, the country of residence of any Guarantor.
Notwithstanding the foregoing, a Guarantor making a payment on the Securities
pursuant to the Guarantee shall not be required to pay any additional amounts if
(x) the beneficial holder of a Security received by certified mail (evidenced by
a return receipt signed by such beneficial holder) (i) written notice from such
Guarantor no less than 60 days in advance of making such payment and (ii) the
appropriate forms or instructions necessary to enable such beneficial holder to
certify or document the availability of an exemption from, or reduction of, the
withholding or deduction of such taxes under applicable law, which such
instructions shall clearly specify that additional amounts under this Section
1205 may not be paid if such forms are not completed by such beneficial holder,
and (y) the Guarantor that would otherwise have to pay such additional amounts
establishes to the satisfaction of the Trustee that the obligation to pay such
additional amounts would not have risen but for the failure of such beneficial
holder to (i) duly complete such forms as were actually received by such
beneficial holder or respond to such instructions and (ii) provide to such
Guarantor such duly completed forms or responses to instructions. Without
prejudice to the survival of any of the agreements of the Guarantors hereunder,
the agreements and obligations of the Guarantors contained in this Section 1205
shall survive the payment in full of Securities and all other amounts payable
under this Guarantee.
Section 1206. Limitation of Guarantees.
The Company and each Holder by its acceptance thereof, hereby confirm
that it is the intention of all such parties that any Guarantee of the
Securities executed by a Guarantor under this Indenture and the terms of a
supplemental indenture or Officers' Certificate for any series of Securities not
constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy
Law, the Uniform Fraudulent Conveyance Act or any similar federal or state law.
To effectuate the foregoing intention, in the event that any such Guarantee
would constitute or result in a violation of any applicable fraudulent
conveyance or similar law of any relevant jurisdiction, the liability of the
Guarantor under such Guarantee shall be reduced to the maximum amount, after
giving effect to all other contingent and fixed liabilities of such Guarantor,
permissible under the applicable fraudulent conveyance or similar law.
Section 1207. Release of Guarantees.
(a) Concurrently with the payment in full of all of the Securities, the
Guarantors shall be released from and relieved of their obligations under this
Article Twelve. Upon the delivery by the Company to the Trustee of an Officers'
Certificate and, if requested by the Trustee, an Opinion of Counsel to the
effect that the transaction giving rise to the release of such obligations was
made by the Company in accordance with the provisions of this Indenture, the
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Trustee shall execute any documents reasonably required in order to evidence the
release of the Guarantors from their obligations. If any of the Guaranteed
Obligations are revived and reinstated after the termination of this Guarantee,
then all of the obligations of the Guarantors under this Guarantee shall be
revived and reinstated as if this Guarantee had not been terminated until such
time as the Guaranteed Obligations are again terminated, and the Guarantors
shall enter into an amendment to this Guarantee, reasonably satisfactory to the
Trustee, evidencing such revival and reinstatement.
(b) Upon the sale or disposition of all the Capital Stock owned by the
Company of a Guarantor (by merger or otherwise) to a Person other than the
Company or any other Guarantor and which sale or disposition is otherwise in
compliance with the terms of this Indenture, such Guarantor shall be deemed
released from all obligations under this Article Twelve; provided, however, that
any such termination upon such sale or disposition shall occur if and only to
the extent that all obligations of such Guarantor under all of its guarantees
of, and under all of its pledges of assets or other security interests which
secure, indebtedness of the Company or any other Guarantor shall also terminate
upon such sale or disposition. Upon the delivery by the Company to the Trustee
of an Officers' Certificate and, if requested by the Trustee, an Opinion of
Counsel to the effect that the transaction giving rise to the release of such
obligations was made in accordance with the provisions of this Indenture, the
Trustee shall execute any documents reasonably required in order to evidence the
release of such Guarantor from its obligations. Any Guarantor not so released
remains liable for the full amount of principal of (and premium, if any) and
interest on the Securities as provided in this Article Twelve.
Section 1208. Terms.
No Guarantor may consolidate with or merge with or into (whether or not
such Guarantor is the surviving Person) another corporation, Person or entity
(other than the Company or another Guarantor), unless (i) subject to the
provisions of Section 1207 hereof, the Person formed by or surviving any such
consolidation or merger (if other than the Guarantor) assumes all of the
obligations of such Guarantor under the Notes (including the guarantee) in form
and substance reasonably satisfactory to the Trustee, together with an Officers'
Certificate of the Company and an Opinion of Counsel stating that the
transaction and such supplemental indenture comply with this Indenture and (ii)
immediately after giving effect to such transaction, no Event of Default exists.
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.
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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 at
least one Business Day prior to the Repayment Date it will deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay the principal (or, if so provided by the terms of
the Securities of any series, a percentage of the principal) of, and (except if
the Repayment Date shall be 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 there for specified in
the terms of such Security (or at such other place or places of which the
Company shall from time to time notify the Holders of such Securities) not
earlier than 60 days nor later than 30 days prior to the Repayment Date (1) the
Security so providing for such repayment together with the "Option to Elect
Repayment" form on the reverse thereof duly completed by the Holder (or by the
Holder's attorney duly authorized in writing) or (2) a telegram, telex,
facsimile transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc. ("NASD"), or a
commercial bank or trust company in the United States setting forth the name of
the Holder of the Security, the principal amount of the Security, the principal
amount of the Security to be repaid, the CUSIP number, if any, or a description
of the tenor and terms of the Security, a statement that the option to elect
repayment is being exercised thereby and a guarantee that the Security to be
repaid, together with the duly completed form entitled "Option to Elect
Repayment" on the reverse of the Security, will be received by the Trustee not
later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter; provided, however, that such telegram, telex,
facsimile transmission or letter shall only be effective if such Security and
form duly completed are received by the Trustee by such fifth Business Day. If
less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for Securities
of such series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the principal amount of
such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
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Section 1304. When Securities Presented for Repayment Become Due and Payable.
If Securities of any series provide 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
portion 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 coupons, if any, appertaining
thereto maturing after the Repayment Date, the principal amount of such Security
so to be repaid paid by the Company, together with accrued interest, if any,
Repayment Date; provided, however, that coupons whose Stated Maturity is on or
prior to the Repayment Date shall be payable 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 with 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 relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to it such security or indemnity
as they may require to save it 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 presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
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Section 1305. Securities Repaid in Part.
Upon surrender of any Registered Security which is to be repaid in part
only, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security, without service charge and at the expense of the
Company, a new Registered Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Applicability of Article; Company's Option to Effect Defeasance or
Covenant Defeasance.
If, pursuant to Section 301, provision is made for either or both of
(a) defeasance of the Securities of or within a series under Section 1402 or (b)
covenant defeasance of the Securities of or within a series under Section 1403,
then the provisions of such Section or Sections, as the case may be, together
with the other provisions of this Article (with such modifications thereto as
may be specified pursuant to Section 301 with respect to any Securities), shall
be applicable to such Securities and any coupons appertaining thereto, and the
Company may at its option by Board Resolution, at any time, with respect to such
Securities and any coupons appertaining thereto, elect to have Section 1402 (if
applicable) or Section 1403 (if applicable) be applied to such Outstanding
Securities and any coupons appertaining thereto upon compliance with the
conditions set forth below in this Article.
Section 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any coupons appertaining thereto on the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Outstanding
Securities and any coupons appertaining thereto, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1405 and the other
Sections of this Indenture referred to in clauses (A) and (B) below, and to have
satisfied all of its other obligations under such Securities and any coupons
appertaining thereto and this Indenture insofar as such Securities and any
coupons appertaining thereto are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect of
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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 1012, (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 1010, inclusive and, if
specified pursuant to Section 301, its obligations under any other covenant,
with respect to such Outstanding Securities and 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 1010,
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 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(3) or 501(7) otherwise, as
the case may be, but, except as specified above, 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
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through the scheduled payment of principal and interest in respect thereof in
accordance with the 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 any case, in an amount,
sufficient, without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered the Trustee,
to pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of (and premium or
Make-Whole Amount, if any) and interest, if any, on such Outstanding Securities
and any coupons, appertaining thereto on the Stated Maturity of such principal
or installment of principal or interest or analogous payments applicable to such
Outstanding Securities and any coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of this Indenture
and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 501(5) and 501(6) 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.
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(g) 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.
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 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.
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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. This indemnity shall survive the resignation or removal of
the Trustee and the termination of this Indenture.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Company from time to time
upon the 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 as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less than 21
nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the 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 for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
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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 Act 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 Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specific percentage, that 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 of the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
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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 act 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 provided in Section 1502(b), in which case
the Company or the Holders of Securities of the series calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or 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.
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(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
Series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of 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 Act 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 an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such Act 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.
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Section 1508. Proof of Execution of Instruments.
Subject to Article Six, the execution of any instrument by a Holder or
his agent or proxy may be proved in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.
************
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
CARRAMERICA REALTY CORPORATION
By: /s/ Brian K. Fields
-------------------------------------
Title:
BANKERS TRUST COMPANY, as Trustee
By: /s/ Ednora G. Linares
-------------------------------------
Title: Assistant Vice President
ATTEST
By: /s/ Marc Parilla
-------------------------
Title: Assistant Treasurer
The Guarantor(s):
CARRAMERICA REALTY, L.P.
By: CarrAmerica Realty GP Holdings, Inc.
General Partner
By: /s/ Brian K. Fields
-------------------------------------
Title:
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DISTRICT OF COLUMBIA)) ss:
CITY OF WASHINGTON)
On the 1st day of Oct., 1998, before me personally came to me known,
_____________ who, being by me duly sworn, did depose and say that he/she
resides in _________________________________, that he/she is the
___________________ of CarrAmerica Realty Corporation, one of the parties
described in and which executed the foregoing instrument; and that he/she signed
his/her name thereto by authority of said corporation.
[Notarial Seal]
/s/
__________________________________
Notary Public
COMMISSION EXPIRES:
STATE OF NEW YORK)) ss:
COUNTY OF NEW YORK)
On the 1st day of October, ___________________, before me personally
came to me known, Ednora G. Linares, who, being by me duly sworn, did depose and
say that she/he resides at 19 Parkview Terrace, that she/he is a Asst. Vice
President of [Bank], one of the parties described in and which executed the
foregoing instrument; and that he/she signed his/her name thereto by authority
of said corporation.
[Notarial Seal]
/s/
__________________________________
Notary Public
COMMISSION EXPIRES:
- 90 -
<PAGE>
DISTRICT OF COLUMBIA)) ss:
CITY OF WASHINGTON)
On the ____ day of __________, ______________, before me personally
came to me known, _____________ who, being by me duly sworn, did depose and say
that he/she resides in _________________________________, that he/she is the
___________________ of CarrAmerica Realty GP Holdings, Inc., the general partner
of CarrAmerica Realty, L.P., one of the guarantors described in and which
executed the foregoing instrument as such; and that he/she signed his/her name
thereto by authority of said corporation.
[Notarial Seal]
/s/
__________________________________
Notary Public
COMMISSION EXPIRES:
- 91 -
<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
Companies, 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
2.165-12(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 Colonial Prospective Trust or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and "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 absent of any such notification it may be assumed that this
certification applies as of such date.
- 92 -
<PAGE>
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:
,
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or
(ii) the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[Name of Person Making Certification]
(Authorized Signatory)
Name:
Title:
- 93 -
<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 Companies, domestic corporations or any estate or trust
the income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) is owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise Colonial Prospective Trust or its agent that such financial
institution will comply with the requirements of Section 165(j) (3) (A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to
the further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its `possessions'
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
- 94 -
<PAGE>
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: ,
[To be dated no earlier than the Exchange
Date or the relevant Interest Payment
Date occurring prior to the Exchange Date,
as applicable]
[Morgan Guaranty Trust Company of New York,
Brussels Office,] as Operator of the Euroclear
System [Cedel S.A.]
By: __________________________________________
- 95 -
Exhibit 5.1
HOGAN & HARTSON L.L.P
COLUMBIA SQUARE
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004-1109
TEL (202)-637-5600
FAX (202) 637-5910
October 1, 1998
CarrAmerica Realty Corporation
CarrAmerica Realty, L.P.
1850 K Street, N.W.
Washington, D.C. 20006
Ladies and Gentlemen:
We are acting as counsel to CarrAmerica Realty Corporation, a
Maryland corporation (the "Company"), and CarrAmerica Realty, L.P., a Delaware
limited partnership ("CarrAmerica Realty" and, together with the Company, the
"Issuers"), in connection with the Issuers' registration statement on Form S-3
(SEC File No. 333-53751), as amended (the "Registration Statement"), previously
declared effective by the Securities and Exchange Commission relating to the
proposed public offering and sale by the Issuers of their securities from time
to time as set forth in a Prospectus which forms a part of the Registration
Statement, and as set forth in one or more supplements to such Prospectus. This
opinion letter is rendered in connection with the sale of $150,000,000 aggregate
principal amount of the Company's 6.625% Notes due October 1, 2000 (the
"Notes"). CarrAmerica Realty has guaranteed payment of the principal of (and
premium, if any) and interest on the Notes. This opinion letter is furnished to
you at your request to enable you to fulfill the requirements of Item 601(b)(5)
of Regulation S-K, 17 C.F.R. ss. 229.601(b)(5), in connection with the
Registration Statement.
For purposes of this opinion letter, we have examined copies
of the following documents:
1. Executed copy of the Registration Statement.
2. Executed copy of the Indenture dated as of October 1,
1998 (the "Indenture") among the Company, CarrAmerica
Realty (as guarantor) and Bankers Trust Company (as
trustee) (the "Trustee").
3. Specimen copy of the Notes.
<PAGE>
CarrAmerica Realty Corporation
CarrAmerica Realty, L.P.
October 1, 1998
Page 2
4. Specimen copy of the Guarantee of the Notes by
CarrAmerica Realty (the "Note Guarantees").
5. Articles of Amendment and Restatement of Articles of
Incorporation of the Company, as amended, as
certified by the State Department of Assessments and
Taxation of the State of Maryland (the "Department")
on September 29, 1998 and as certified by an
Assistant Secretary of the Company on the date hereof
as being complete, accurate and in effect.
6. Second Amendment and Restatement of the Company's
By-Laws, as amended, as certified by an Assistant
Secretary of the Company on the date hereof as being
complete, accurate and in effect.
7. Certificate of Limited Partnership of CarrAmerica
Realty, as amended, as certified by the Secretary of
State of Delaware on September 29, 1998 and as
certified by an Assistant Secretary of CarrAmerica
Realty GP Holdings, Inc. ("GP Holdings"), the general
partner of CarrAmerica Realty, on the date hereof as
being complete, accurate and in effect.
8. Second Amended and Restated Agreement of Limited
Partnership of CarrAmerica Realty, as amended, as
certified by an Assistant Secretary of GP Holdings on
the date hereof as being complete, accurate and in
effect.
9. Certificate of Incorporation of GP Holdings, as
certified by the Secretary of State on September 29,
1998 and as certified by an Assistant Secretary of GP
Holdings on the date hereof as being complete,
accurate and in effect.
10. By-Laws of GP Holdings, as certified by an Assistant
Secretary of GP Holdings on the date hereof as being
complete, accurate and in effect.
11. Executed copy of the Underwriting Agreement dated as
of September 25, 1998, among the Company, Goldman,
Sachs & Co. and Legg Mason Wood Walker, Incorporated
relating to the sale of the Notes.
<PAGE>
CarrAmerica Realty Corporation
CarrAmerica Realty, L.P.
October 1, 1998
Page 3
12. Executed copy of the Terms Agreement dated as of
September 25, 1998 among the Issuers, Goldman Sachs &
Co. and Legg Mason Wood Walker, Incorporated relating
to the sale of the Notes.
13. Certain resolutions of the Board of Directors of the
Company adopted at a meeting held on September 28,
1998 relating to authorization of the Notes and
arrangements in connection therewith, as certified by
an Assistant Secretary of the Company on the date
hereof as being complete, accurate and in effect.
14. Certain resolutions of the Board of Directors of GP
Holdings adopted by unanimous written consent dated
as of September 25, 1998 relating to authorization of
the guarantee of the Notes and arrangements in
connection therewith, as certified by the Assistant
Secretary of GP Holdings on the date hereof as being
complete, accurate and in effect.
In our examination of the aforesaid documents, we have assumed
the genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us, and
the conformity with the original documents of all documents submitted to us as
certified, telecopied, photostatic, or reproduced copies. This opinion letter is
given, and all statements herein are made, in the context of the foregoing.
For purposes of this opinion letter, we have assumed that (i)
the Trustee has all requisite power and authority under all applicable laws,
regulations and governing documents to execute, deliver and perform its
obligations under the Indenture, (ii) the Trustee has duly authorized, executed
and delivered the Indenture, (iii) the Trustee is validly existing and in good
standing in all necessary jurisdictions, (iv) the Indenture constitutes a valid
and binding obligation, enforeable against the Trustee in accordance with its
terms and (v) there has been no material mutual mistake of fact or
misunderstanding or fraud, duress or undue influence, in connection with the
negotiation, execution or delivery of the Indenture.
This opinion letter is based as to matters of law solely on
(i) the General Corporation Law of the State of Maryland, as amended, (ii) the
<PAGE>
CarrAmerica Realty Corporation
CarrAmerica Realty, L.P.
October 1, 1998
Page 4
Delaware Revised Uniform Limited Partnership Act, as amended, (iii) the General
Corporation Law of the State of Delaware, as amended, and (iv) New York contract
law (but not including any statutes, ordinances, administrative decisions, rules
or regulations of any political subdivision of the State of New York), and we
express no opinion as to any other laws, statutes, ordinances, rules or
regulations (such as state securities or "blue sky" laws).
Based upon, subject to and limited by the foregoing, and
assuming the due execution and delivery of the Notes, we are of the opinion
that, following execution, authentication and delivery of the Notes and the Note
Guarantees in accordance with the Indenture, the Notes will be binding
obligations of the Company, and the Note Guarantees will be binding obligations
of CarrAmerica Realty, both enforceable in accordance with their terms.
* * * *
The opinions expressed above with respect to the
enforceability of the Notes and the Note Guarantees, respectively, (i) are each
subject to the exception that enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
(including, without limitation, the effect of statutory and other law regarding
fraudulent conveyances, fraudulent transfers and preferential transfers), and
(b) the exercise of judicial discretion and the application of principles of
equity including, without limitation, requirements of good faith, fair dealing,
conscionability and materiality (regardless of whether such agreement is
considered in a proceeding in equity or at law) and (ii) shall be understood to
mean only that if there is a default in performance of an obligation, (a) if a
failure to pay or other damage can be shown and (b) if the defaulting party can
be brought into a court which will hear the case and apply the governing law,
then, subject to the availability of defenses, and to the exceptions set forth
in the immediately preceding clause (i), the court will provide a money damage
(or perhaps an injunctive or specific performance) remedy.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion letter
has been prepared solely for your use in connection with the filing by you of a
Current Report on Form 8-K on or about the date of this opinion letter, which
Current Report will be incorporated by reference into the Registration
Statement. This opinion letter should not be quoted in whole or in part or
otherwise be referred to, nor filed with or furnished to any governmental agency
or other person or entity, without the prior written consent of this firm.
<PAGE>
CarrAmerica Realty Corporation
CarrAmerica Realty, L.P.
October 1, 1998
Page 5
We hereby consent to the filing of this opinion letter as an
exhibit to your Current Report on Form 8-K and to the reference to this firm
under the caption "Legal Matters" in the Prospectus Supplement dated September
25, 1998 constituting a part of the Registration Statement. In giving this
consent, we do not thereby admit that we are an "expert" within the meaning of
the Securities Act of 1933, as amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.
Exhibit 25
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2) ___________
--------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
--------------------
CARR AMERICA REALTY CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 13-2555119
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
International Square
1850 K Street, NW, Suite 500
Washington, DC 20006
(Address of principal executive offices)
6.625% Series A Senior Notes due October 1, 2000
(Title of the indenture securities)
================================================================================
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to
which it is subject.
Name Address
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3.-15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of
Bankers Trust Company dated August 7, 1990,
Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated
June 21, 1995 - Incorporated herein by
reference to Exhibit 1 filed with Form T-1
Statement, Registration No. 33-65171,
Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated
March 20, 1996, incorporated by reference to
Exhibit 1 filed with Form T-1 Statement,
Registration No. 333-25843, Certificate of
Amendment of the Organization Certificate of
Bankers Trust Company dated June 19, 1997,
incorporated by reference to Exhibit 1 filed
with Form T-1 Statement, Registration No.
333-45229 and Certificate of Amendment of
the Organization Certificate of Bankers
Trust Company dated March 26, 1998, copy
attached.
Exhibit 2 - Certificate of Authority to commence
business - Incorporated herein by reference
to Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise
corporate trust powers Incorporated herein
by reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust
Company, as amended on November 18, 1997.
Copy attached.
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. Incorporated herein by
reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust
Company dated as of June 30, 1998. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 29th day
of September, 1998.
BANKERS TRUST COMPANY
By: Ednora G. Linares
------------------------
Ednora G. Linares
Assistant Vice President
-3-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section
8005 of the Banking Law," dated March 18, 1998, providing for an increase in
authorized capital stock from $2,351,666,670 consisting of 135,166,667 shares
with a par value of $10 each designated as Common Stock and 1000 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$2,501,666,670 consisting of 150,166,667 shares with a par value of $10 each
designated as Common Stock and 1,000 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of
New York,
this 26th day of March in the Year of our Lord one
thousand nine hundred and ninety-eight.
Manuel Kursky
------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion, Three Hundred and Fifty One Million, Six Hundred
Sixty-Six Thousand, Six Hundred Seventy Dollars ($2,351,666,670),
divided into One Hundred Thirty Five Million, One Hundred Sixty-Six
Thousand, Six Hundred Sixty-Seven (135,166,667) shares with a par value
of $10 each designated as Common Stock and 1000 shares with a par value
of One Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion Five Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($2,501,666,670), divided into
One Hundred Fifty Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (150,166,667) shares with a par value of $10 each
designated as Common Stock and 1000 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
<PAGE>
6. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
18th day of March, 1998.
James T. Byrne, Jr.
--------------------------------------
James T. Byrne, Jr.
Managing Director and Secretary
Lea Lahtinen
--------------------------------------
Lea Lahtinen
Vice President and Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice
President and an Assistant Secretary of Bankers Trust Company, the corporation
described in the foregoing certificate; that she has read the foregoing
certificate and knows the contents thereof, and that the statements herein
contained are true.
Lea Lahtinen
--------------------
Lea Lahtinen
Sworn to before me this 18th day
of March, 1998.
Sandra L. West
--------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
================================================================================
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
================================================================================
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
<PAGE>
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office, and the directors so elected shall hold office for the balance
of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time on the third Tuesday of the month. If the day appointed for holding such
regular meetings shall be a legal holiday, the regular meeting to be held on
such day shall be held on the next business day thereafter. Special meetings of
the Board of Directors may be called upon at least two day's notice whenever it
may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
<PAGE>
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President,
and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Managing Directors, one or
more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records
<PAGE>
and premises of the Company and shall delegate such authority to his
subordinates. He shall have the duty to report to the Audit Committee on all
matters concerning the internal audit program and the adequacy of the system of
internal controls of the Company which he deems advisable or which the Audit
Committee may request. Additionally, the General Auditor shall have the duty of
reporting independently of all officers of the Company to the Audit Committee at
least quarterly on any matters concerning the internal audit program and the
adequacy of the system of internal controls of the Company that should be
brought to the attention of the directors except those matters responsibility
for which has been vested in the General Credit Auditor. Should the General
Auditor deem any matter to be of special immediate importance, he shall report
thereon forthwith to the Audit Committee. The General Auditor shall report to
the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking Law, indemnify any person who is or was made, or threatened
to be made, a party to an action or proceeding, whether civil or criminal,
whether involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company,
<PAGE>
evidenced by a written communication signed by the Chairman of the Board, the
Chief Executive Officer or the President, and (ii) only if and to the extent
that, after making such efforts as the Chairman of the Board, the Chief
Executive Officer or the President shall deem adequate in the circumstances,
such person shall be unable to obtain indemnification from such other enterprise
or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of
expense pursuant to this Article V (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
<PAGE>
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Peter Becker, Assistant Secretary of Bankers Trust Company, New York, New
York, hereby certify that the foregoing is a complete, true and correct copy of
the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
Peter Becker
-------------------------
ASSISTANT SECRETARY
DATED: September 29, 1998
------------------
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
<S> <C> <C>
Schedule RC--Balance Sheet
-----------
| C400 |
-------------------------
Dollar Amounts in Thousands | RCFD Bil Mil Thou |
- ----------------------------------------------------------------------------------------------------------------------------
ASSETS | / / / / / / / / |
1. Cash and balances due from depository institutions (from Schedule RC-A): | / / / / / / / / |
a. Noninterest-bearing balances and currency and coin (1) ................... | 0081 1,868,000 |1.a.
b. Interest-bearing balances (2) ............................................ | 0071 2,041,000 |1.b.
2. Securities: | / / / / / / / / |
a. Held-to-maturity securities (from Schedule RC-B, column A) ............... | 1754 0 |2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).............. | 1773 7,419,000 |2.b.
3. Federal funds sold and securities purchased under agreements to resell........... | 1350 41,837,000 |3.
4. Loans and lease financing receivables: | / / / / / / / / |
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 20,707,000 | / / / / / / / / |4.a.
b. LESS: Allowance for loan and lease losses...................RCFD 3123 629,000 | / / / / / / / / |4.b.
c. LESS: Allocated transfer risk reserve ......................RCFD 3128 0 | / / / / / / / / |4.c.
d. Loans and leases, net of unearned income, | / / / / / / / / |
allowance, and reserve (item 4.a minus 4.b and 4.c) ....................... | 2125 20,078,000 |4.d.
5. Trading Assets (from schedule RC-D) ............................................ | 3545 49,665,000 |5.
6. Premises and fixed assets (including capitalized leases) ........................ | 2145 848,000 |6.
7. Other real estate owned (from Schedule RC-M) .................................... | 2150 180,000 |7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) | 2130 92,000 |8.
9. Customers' liability to this bank on acceptances outstanding .................... | 2155 512,000 |9.
10. Intangible assets (from Schedule RC-M) .......................................... | 2143 270,000 |10.
11. Other assets (from Schedule RC-F) ............................................... | 2160 6,442,000 |11.
12. Total assets (sum of items 1 through 11) ........................................ | 2170 131,252,000 |12.
-------------------------
</TABLE>
- --------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: Bankers Trust Company Call Date: 06/30/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
<S> <C> <C>
Schedule RC--Continued
-------------------------
Dollar Amounts in Thousands | / / / / Bil Mil Thou |
- ----------------------------------------------------------------------------------------------------------------------------
LIABILITIES | / / / / / / / / / |
13. Deposits: | / / / / / / / / / |
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) | RCON 2200 26,791,000 |13.a.
(1) Noninterest-bearing(1) .........................RCON 6631 3,362,000...... | / / / / / / / / / |13.a.(1)
(2) Interest-bearing ...............................RCON 6636 23,429,000...... | / / / / / / / / / |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E | / / / / / / / / / |
part II) | RCFN 2200 22,089,000 |13.b.
(1) Noninterest-bearing ............................RCFN 6631 1,810,000 | / / / / / / / / / |13.b.(1)
(2) Interest-bearing ...............................RCFN 6636 20,279,000 | / / / / / / / / / |13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase | RCFD 2800 19,274,000 |14.
15. a. Demand notes issued to the U.S. Treasury ........................................ | RCON 2840 0 |15.a.
b. Trading liabilities (from Schedule RC-D)......................................... | RCFD 3548 30,729,000 |15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases):| / / / / / / / / / |
capitalized leases): | / / / / / / / / / |
a. With a remaining maturity of one year or less ................................... | RCFD 2332 7,891,000 |16.a.
b. With a remaining maturity of more than one year through three years............. | A547 3,576,000 |16.b.
c. With a remaining maturity of more than three years............................... | A548 2,872,000 |16.c
17. Not Applicable. | / / / / / / / / / |17.
18. Bank's liability on acceptances executed and outstanding ........................... | RCFD 2920 512,000 |18.
19. Subordinated notes and debentures (2)............................................... | RCFD 3200 1,534,000 |19.
20. Other liabilities (from Schedule RC-G) ............................................. | RCFD 2930 9,202,000 |20.
21. Total liabilities (sum of items 13 through 20) ..................................... | RCFD 2948 124,470,000 |21.
22. Not Applicable | / / / / / / / / / |
| / / / / / / / / / |22.
EQUITY CAPITAL | / / / / / / / / / |
23. Perpetual preferred stock and related surplus ...................................... | RCFD 3838 1,000,000 |23.
24. Common stock ....................................................................... | RCFD 3230 2,001,000 |24.
25. Surplus (exclude all surplus related to preferred stock) ........................... | RCFD 3839 540,000 |25.
26. a. Undivided profits and capital reserves .......................................... | RCFD 3632 3,693,000 |26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities .......... | RCFD 8434 (71,000)|26.b.
27. Cumulative foreign currency translation adjustments ................................ | RCFD 3284 (381,000)|27.
28. Total equity capital (sum of items 23 through 27) .................................. | RCFD 3210 6,782,000 |28.
29. Total liabilities and equity capital (sum of items 21 and 28)....................... | RCFD 3300 131,252,000|29
| |
-------------------------
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the Number
most comprehensive level of auditing work performed for the bank by independent external -------------------------
auditors as of any date during 1997............................................................| RCFD 6724 N/A | M.1
-------------------------
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- ----------------------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
