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: March 4, 1998
Date of earliest event reported: February 24, 1998
TriNet Corporate Realty Trust, Inc.
(Exact name of registrant as specified in its charter)
Maryland I-11918 94-3175659
(State or other jurisdiction (Commission File (I.R.S. Employer
of organization) Number) Identification No.)
Four Embarcadero Center 94111
Suite 3150 (Zip Code)
San Francisco, CA
(Address of principal executive offices)
(415) 391-4300
(Registrant's telephone number, including area code)
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Item 7. Financial Statements and Exhibits
(c) Exhibits
Exhibit Exhibit
Number
1.1 Underwriting Agreement, dated February 24, 1998, relating to 6.75% Dealer
remarketable securities due 2013 ("Drs."), between TriNet Corporate Realty
Trust, Inc. (the "Company"), J.P. Morgan Securities Inc. and Goldman, Sachs
& Co.
1.2 Remarketing Agreement, dated February 27, 1998, relating to the Drs.,
between the Company and J.P. Morgan Securities Inc.
4.1 Senior Debt Securities Indenture, dated as of February 27, 1998, between
the Company and Harris Trust and Savings Bank (the "Trustee").
4.2 Supplemental Indenture No. 1, dated as of February 27, 1998, between the
Company and the Trustee, relating to the Drs., including the form of Drs.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
TRINET CORPORATE REALTY TRUST, INC.
By: /s/ A. William Stein
-------------------------------------
Name: A. William Stein
Title: Executive Vice President and
Chief Financial Officer
Date: March 3, 1998
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Exhibit Index
Exhibit Exhibit
Number
1.1 Underwriting Agreement, dated February 24, 1998, relating to 6.75% Dealer
remarketable securities due 2013 ("Drs."), between TriNet Corporate Realty
Trust, Inc. (the "Company"), J.P. Morgan Securities Inc. and Goldman, Sachs
& Co.
1.2 Remarketing Agreement, dated February 27, 1998, relating to the Drs.,
between the Company and J.P. Morgan Securities Inc.
4.1 Senior Debt Securities Indenture, dated as of February 27, 1998, between
the Company and Harris Trust and Savings Bank (the "Trustee").
4.2 Supplemental Indenture No. 1, dated as of February 27, 1998, between the
Company and the Trustee, relating to the Drs., including the form of Drs.
TriNet Corporate Realty Trust, Inc.
$125,000,000 of 6.75% Dealer remarketable securities(SM) ("Drs.(SM)") due 2013
Underwriting Agreement
February 24, 1998
J.P. MORGAN SECURITIES INC.
GOLDMAN, SACHS & CO.
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Dear Sirs:
TriNet Corporate Realty Trust, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell to J.P. Morgan Securities Inc. ("JPMSI")
and Goldman, Sachs & Co. ("Goldman, Sachs," and, together with JPMSI, the
"Underwriters"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture specified
in Schedule I hereto (the "Indenture") between the Company and the Trustee
identified in such Schedule (the "Trustee").
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Securities Act"), a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, relating to
certain securities (the "Shelf Securities") to be issued from time to time by
the Company. The Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act ("Rule 424") a
prospectus supplement specifically relating to the Securities. The registration
statement as amended to the date of this Agreement is hereinafter referred to as
the "Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities (the "Prospectus Supplement") in the form first used to confirm sales
of the Securities is hereinafter referred to as the "Prospectus". Any
registration statement (including any amendment or supplement thereto or
information which is deemed part thereof) filed by the Company under Rule 462(b)
of the Securities Act (a "Rule 462(b) Registration Statement") shall be deemed
to be part of the "Registration Statement" as defined herein and any prospectus
or any term sheet as contemplated by
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SM "Dealer remarketable securities(SM)" and "Drs.(SM)" are service marks of
J.P. Morgan Securities Inc.
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Rule 434 of the Securities Act (a "Term Sheet") (including any amendment or
supplement thereto or information which is deemed part thereof) included in such
registration statement shall be deemed to be part of the "Prospectus," as
defined herein. Any reference in this Agreement to the Registration Statement,
the Basic Prospectus, any preliminary form of Prospectus (a "preliminary
prospectus") previously filed with the Commission pursuant to Rule 424 or the
Prospectus shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act which
were filed under the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder (collectively, the "Exchange Act")
on or before the date of this Agreement or the date of the Registration
Statement, the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect the Registration Statement, the Basic Prospectus, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include any
documents filed under the Exchange Act after the date of this Agreement, or the
date of the Registration Statement, the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i) to make
a public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made to the Company or to its order
in immediately available funds on the date and at the time and place set forth
in Schedule I hereto (or at such other time and place on the same or such other
date, not later than the third Business Day thereafter, as you and the Company
may agree in writing). Such payment will be made upon delivery of the Securities
to the Underwriters registered in such names and in such denominations as you
shall request not less than two full Business Days prior to the date of
delivery, with any transfer taxes payable in connection with transfer to the
Underwriters duly paid by the Company. As used herein, the term "Business Day"
means any day other than a day on which banks are permitted or required to be
closed in New York City. The time and date of such payment and delivery with
respect to the Securities are referred to herein as the "Closing Date." The
Securities will be delivered through the book entry facilities of The Depository
Trust Company ("DTC") and will be made available for inspection by you by 1:00
P.M. on the Business Day prior to the Closing Date at such place in New York
City as you, DTC and the Company shall agree.
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4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement became effective on December 30, 1997. 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, 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, threatened by
the Commission or by the state securities authority of any jurisdiction;
(b) the Registration Statement and the Prospectus, including the financial
statement, schedules and related notes included in the Prospectus and, if
applicable, any Term Sheet to the Prospectus, as of the date hereof and at the
time the Registration Statement became effective, and when any post-effective
amendment to the Registration Statement or Rule 462(b) Registration Statement
becomes effective or any amendment or supplement to the Prospectus is filed with
the Commission, did or will comply in all material respects with all applicable
provisions of the Act and will contain all statements required to be stated
therein in accordance with the Act. The Prospectus, including the financial
statements, schedules and related notes included in the Prospectus, and if
applicable, any Term Sheet to the Prospectus, as of the date hereof and at the
time the Registration Statement became effective, and at the Closing Date, and
when any post-effective amendment to the Registration Statement or Rule 462(b)
Registration Statement becomes effective or any amendment or supplement to the
Prospectus is filed with the Commission, did or will comply in all material
respects with all applicable provisions of the Act and will contain all
statements required to be stated therein in accordance with the Act. On the date
the Registration Statement was declared effective, on the date hereof, on the
date of filing of any Rule 462(b) Registration Statement and on the Closing Date
no part of the Registration Statement or any amendment did or will contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading. On the date the Registration Statement was declared effective, on
the date hereof, as of its date, on the date of filing of any Rule 462(b)
Registration Statement and at the Closing Date, the Prospectus did not or will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If a Rule 462(b) Registration
Statement is filed in connection with the offering and sale of the Securities,
the Company will have complied or will comply with the requirements of Rule 111
under the Act relating to the payment of filing fees therefor. The foregoing
representations and warranties in this Section 4(b) do not apply to any
statements or omissions made in reliance on and in conformity with information
relating to the Underwriters furnished in writing to the Company by the
Underwriters specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereto. The Company has not
distributed any offering material in connection with the offering or sale of the
Securities other than the Registration Statement, the Prospectus or any other
materials, if any, permitted by the Securities Act.
(c) each 462(b) Registration Statement, if any, complied or will comply
when so filed in all material respects with all applicable provisions of the
Securities Act; and did not con-
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tain 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;
(d) the documents incorporated or deemed to be incorporated by reference in
the Prospectus, pursuant to Item 12 of Form S-3 under the Securities 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 Exchange Act, and
when read together with the other information in and incorporated by reference
in the Prospectus, at the time the Registration Statement became effective and
as of the date hereof, did not, and at the Closing Date and during the time
period specified in Section 5(e) of this Agreement, will not, contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; the foregoing representations and warranties in this
Section 4(d) do not apply to any statements or omissions made in reliance on and
in conformity with information relating to the Underwriters furnished in writing
to the Company by the Underwriters specifically for inclusion in the
Registration Statement or Prospectus or any amendment or supplement thereto;
(e) the historical financial statements and the related notes thereto,
included or incorporated by reference in the Registration Statement and the
Prospectus, comply in all material respects with the requirements of the
Securities Act and the Exchange Act, as applicable, and present fairly the
consolidated financial position of the Company and its consolidated subsidiaries
as of the dates indicated and the results of their operations and the changes in
their cash flows for the periods specified; the financial statements with
respect to the Properties (as defined in the Prospectus) acquired by the
Company, together with related notes, as incorporated by reference in the
Registration Statement or the Prospectus, present fairly a summary of gross
income and direct operating expenses or a summary of gross income, as the case
may be, of such Properties for the indicated periods; the foregoing financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, and the supporting schedules included
or incorporated by reference in the Registration Statement present fairly the
information required to be stated therein; the pro forma financial information,
and the related notes thereto, included or incorporated by reference in the
Registration Statement and the Prospectus comply in all material respects with
the applicable requirements of the Securities Act and the Exchange Act, as
applicable; the assumptions used in preparing such pro forma information are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions referred to therein; and the other financial and statistical
information and data set forth in the Registration Statement and the Prospectus
are accurately presented in all material respects and prepared on a basis
consistent with the books and records of the Company and its consolidated
subsidiaries;
(f) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the condition (financial or otherwise), business,
prospects, properties, net worth or results of operations of the Company and the
Subsidiaries (as defined below), taken as a whole, otherwise than as set forth
or contem-
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plated in the Prospectus; and (ii) except as set forth or contemplated in the
Prospectus, neither the Company nor any of the Subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of business)
material to the Company and the Subsidiaries, taken as a whole;
(g) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of Maryland, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Prospectus, and is duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not (1) have a material
adverse effect on the condition (financial or otherwise), business, prospects,
properties, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole, (2) adversely affect the issuance, validity or
enforceability of the Securities or the enforceability of the Indenture or (3)
adversely affect the consummation of any of the transactions contemplated by
this Agreement (each of (1), (2) and (3) above, a "Material Adverse Effect")
(which jurisdictions of foreign qualification are identified in Schedule III
hereto); except for investments in the Subsidiaries, in short-term investment
securities and in other securities as described in the Registration Statement or
Prospectus, the Company has no direct or indirect equity or other interest in
any corporation, partnership, trust or other entity; each of the Company's
subsidiaries (within the meaning of Regulation S-X under the Securities Act)
(other than TriNet XVII Realty Trust, which does not own any property or other
material assets) is identified on Schedule IV hereto (the "Subsidiaries") and
has been duly organized and is validly existing as a corporation or limited
partnership, as the case may be, in good standing under the laws of its
jurisdiction of organization with corporate or partnership power and authority,
as the case may be, to own or lease its properties and conduct its business as
presently conducted and as described in the Prospectus, and has been duly
qualified as a foreign corporation or foreign limited partnership, as the case
may be, for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than where the failure
to be so qualified or in good standing would not have a Material Adverse Effect
(which jurisdictions of organization and foreign qualification are identified in
Schedule IV hereto); all the outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued, are fully-paid and
non-assessable; except as disclosed in Schedule IV hereto, all the outstanding
shares of capital stock and all partnership interests of each Subsidiary are
owned by the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(h) this Agreement and the Remarketing Agreement (as defined herein) have
each been duly authorized, executed and delivered by the Company;
(i) the Securities have been duly authorized, and, when issued,
authenticated and delivered pursuant to this Agreement and the Indenture will
have been duly and validly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms and entitled to
the benefits provided by the Indenture, except to the extent that enforcement
thereof may be limited by
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(i) bankruptcy, insolvency, reorganization, moratorium or similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity); the Indenture has been duly authorized and,
when executed and delivered by the Company, will constitute a valid and legally
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except to the extent that enforcement thereof may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium or similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity); the Indenture has been duly qualified under the
Trust Indenture Act; and the Securities and the Indenture will conform to the
statements relating thereto contained in the Prospectus;
(j) neither the Company nor any of the Subsidiaries is, or with the giving
of notice or lapse of time or both would be, in violation of or in default under
(1) its Articles of Incorporation, Certificate of Incorporation or partnership
agreement, as the case may be (in each case as amended to the date of this
Agreement), (2) its By-Laws (as amended to the date of this Agreement) or (3)
any indenture, mortgage, deed of trust, loan agreement, partnership agreement or
other agreement or instrument or obligation to which the Company or such
Subsidiary is a party or by which it or any of its properties is bound, except,
with respect to clauses (2) and (3), for violations and defaults which
individually or in the aggregate would not have a Material Adverse Effect; the
issue and sale of the Securities and the performance by the Company of all of
its obligations under the Securities, the Indenture, the Remarketing Agreement
and this Agreement and the consummation of the transactions therein and herein
contemplated will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement, partnership agreement or other material agreement or
instrument to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary is bound or to which any of the property or assets of
the Company or any Subsidiary is subject, except for such conflicts, breaches,
defaults or violations which individually or in the aggregate would not have a
Material Adverse Effect, nor will any such action result in any violation of the
provisions of the Articles of Incorporation or the By-Laws of the Company or any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties except for such violations which individually or in the aggregate
would not have a Material Adverse Effect; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Securities
or the consummation by the Company of the transactions contemplated by this
Agreement, the Remarketing Agreement or the Indenture, except such consents,
approvals, authorizations, orders, registrations or qualifications (x) as have
been obtained under the Securities Act, the Trust Indenture Act, and the
Exchange Act, (y) as may be required under state securities or Blue Sky laws or
Sections 2710 and 2720 of the Conduct Rules of the National Association of
Securities Dealers, Inc. (the "NASD") in connection with the purchase and
distribution of the Securities by the Underwriters or (z) the failure of which
to obtain would not have a Material Adverse Effect;
(k) other than as set forth or contemplated in the Prospectus, there are no
legal or governmental proceedings pending or, to the knowledge of the Company,
threatened to which the
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Company or any of the Subsidiaries is or may be a party or to which any property
of the Company or any of the Subsidiaries is or may be the subject which, if
determined adversely to the Company, could individually or in the aggregate
reasonably be expected to have a Material Adverse Effect; there are no contracts
or other documents of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration Statement
or the Prospectus which are not filed or described as required; and the
descriptions of the terms of all such contracts and documents contained or
incorporated by reference in the Registration Statement or Prospectus are
complete and correct in all material respects;
(l) the authorized capital stock of the Company consists of 40 million
shares of common stock, $.01 par value per share, 25 million shares of excess
stock, $.01 par value per share, and 10 million shares of preferred stock, $.01
par value per share; all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(m) the Company or a Subsidiary has good and marketable title in fee simple
to each Property, in each case free of any lien, mortgage, pledge, charge or
encumbrance of any kind except those (i) described in the Prospectus or in
Schedule IV hereto or (ii) which do not materially affect or detract from the
value of such Property or interfere with the use made and proposed to be made of
such Property by the Company and the Subsidiaries and which individually and in
the aggregate are in an amount which is not material to the Company;
(n) except as disclosed in the Prospectus, each entity identified in the
Prospectus as a tenant of any Property, or a subtenant thereof, has entered into
a lease or a sublease, if applicable, for the possession of such Property;
except as disclosed in the Prospectus, each such lease is in full force and
effect and neither the Company nor any of the Subsidiaries has notice of any
defense to the obligations of the tenant thereunder or any claim asserted or
threatened by any person or entity, which claim, if sustained, would have a
Material Adverse Effect; and except as disclosed in the Prospectus, the lessor
under each lease has complied with its obligations under such lease in all
material respects and neither the Company nor any of the Subsidiaries has notice
of any default by the tenant under such lease which, individually or in the
aggregate with other such defaults, would have a Material Adverse Effect;
(o) the mortgages and deeds of trust encumbering the Properties are not (i)
cross-defaulted to any indebtedness other than indebtedness of the Company or
any of the Subsidiaries or (ii) cross-collateralized to any property not owned
by the Company or any of the Subsidiaries;
(p) the Company and the Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as
are customary in the business in which they are engaged and is adequate for the
value of their properties; all policies of insurance insuring the Company or the
Subsidiaries or their respective business, assets, employees, officers, trustees
and directors, as the case may be, are in full force and effect; the Company and
the Subsidiaries are in compliance with the terms of such policies and
instruments in all material
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respects and there are no claims by the Company or by the Subsidiaries under any
such policy or instrument as to which any insurance company is denying liability
or defending under a reservation of rights clause, other than claims which
individually or in the aggregate would not have a Material Adverse Effect;
(q) the Company has filed all federal, state and foreign income tax returns
which have been required to be filed and has paid all taxes indicated by said
returns and all assessments received by it to the extent that such taxes have
become due and are not being contested in good faith;
(r) the Company and each Subsidiary own, possess and have obtained all
material licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and have made all material declarations and filings with,
all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals necessary to
own or lease, as the case may be, and to operate their properties and to carry
on their business as conducted as of the date hereof, except in each case where
the failure to obtain licenses, permits, certificates, consents, orders,
approvals and other authorizations, or to make all declarations and filings,
would not have a Material Adverse Effect, and none of the Company or any
Subsidiary has received any notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent, order, approval
or other authorization, except as described in the Prospectus and except, in
each case, where such revocation or modification would not have a Material
Adverse Effect; and the Company and each Subsidiary are in compliance with all
laws, rules and regulations relating to the conduct of their respective
businesses as conducted as of the date hereof, except where noncompliance with
such laws, rules or regulations would not have a Material Adverse Effect;
(s) to the Company's knowledge, Coopers & Lybrand L.L.P., who have
certified certain of the financial statements filed with the Commission as part
of, or incorporated by reference in, the Registration Statement, are independent
public accountants as required by the Securities Act;
(t) to the Company's knowledge, no relationship, direct or indirect, exists
between or among the Company or the Subsidiaries on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Company or the
Subsidiaries on the other hand, which is required by the Securities Act to be
described in the Registration Statement and the Prospectus which is not so
described;
(u) the Company has never been, is not now, and immediately after giving
effect to the sale of the Securities under this Agreement will not be, an
"investment company" or entity "controlled" by an "investment company", within
the meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(v) with respect to all tax periods regarding which the Internal Revenue
Service is or will be entitled to assert any claim against the Company, the
Company has met the require-
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ments for qualification as a real estate investment trust ("REIT") under
Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the
"Code"), and the Company's present and contemplated operations, assets and
income continue to meet such requirements;
(w) the conditions for the use by the Company of a registration statement
on Form S-3 set forth in the General Instructions on Form S-3 have been
satisfied and the Company is entitled to use such form for the transactions
contemplated herein;
(x) other than as disclosed in the Prospectus, the Company has no knowledge
of (a) the unlawful presence of any hazardous substances, hazardous materials,
toxic substances or waste materials (collectively, "Hazardous Materials") on any
of the Properties or of (b) any unlawful spills, release, discharges or disposal
of Hazardous Materials that have occurred or are presently occurring from the
Properties as a result of any construction on or operation and use of the
Properties, which presence or occurrence would individually or in the aggregate
have a Material Adverse Effect;
(y) other than as disclosed in the Prospectus, the Company and the
Subsidiaries (i) to the Company's knowledge, are in compliance with any and all
applicable federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) to
the Company's knowledge, have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses or
approvals would not individually or in the aggregate have a Material Adverse
Effect;
(z) in the ordinary course of its business, the Company engages
environmental consultants and other experts to conduct reviews of the effect of
Environmental Laws on the business, operations and properties of the Company and
the Subsidiaries, in the course of which the Company identifies and evaluates
associated costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties); on the basis of such reviews and other than as described in the
Prospectus, the Company has reasonably concluded that such associated costs and
liabilities would not, individually or in the aggregate, have a Material Adverse
Effect;
(aa) subsequent to the respective dates as of which information is given in
the Prospectus, (i) the Company has not purchased any of its outstanding shares
of capital stock, or declared, paid or otherwise made any dividend or
distribution of any kind on its shares of capital stock other than regular
periodic dividends on such shares; and (ii) there has not been any material
change in the shares of capital stock of the Company or any material change in
the short-term debt or long-term debt of the Company and the Subsidiaries on a
consolidated basis, except as described in or contemplated by the Prospectus;
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(bb) the Company has not taken and will not take, directly or indirectly,
any action designed to, or that might be reasonably expected to, cause or result
in stabilization or manipulation of the price of the Securities, and the Company
has not distributed and has agreed not to distribute any prospectus or other
offering material in connection with the offering and sale of the Securities
other than the Prospectus, any preliminary prospectus filed with the Commission
or other material permitted by the Securities Act;
(cc) the Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences;
(dd) there is (i) no significant unfair labor practice complaint pending
against the Company or any of the Subsidiaries or, to the knowledge of the
Company, threatened against any of them, before the National Labor Relations
Board or any state or local labor relations board, and no significant grievance
or more significant arbitration proceeding arising out of or under any
collective bargaining agreement is so pending against the Company or any of the
Subsidiaries or, to the knowledge of the Company, threatened against any of
them, and (ii) no significant strike, labor dispute, slowdown or stoppage
pending against the Company or any of the Subsidiaries or, to the knowledge of
the Company, threatened against it or any of the Subsidiaries except for such
actions specified in clause (i) or (ii) above which singly or in the aggregate
could not reasonably be expected to have a Material Adverse Effect;
(ee) no statement, representation, warranty or covenant made by the Company
in this Agreement or made in any certificate or document required by this
Agreement to be delivered to the Underwriters is, or will be, when made,
inaccurate, untrue or incorrect in any material respect; it being understood
that no representation is made under this Section 4(ae) with respect to the
Registration Statement or the Prospectus which are the subject of
representations contained in other paragraphs in this Section 4; and
(ff) any certificate or other document signed by any officer or authorized
representative of the Company or any Subsidiary, and delivered to the
Underwriters or to counsels for the Underwriters in connection with the sale of
the Securities shall be deemed a representation and warranty by such entity or
person, as the case may be, to the Underwriters as to the matters covered
thereby.
5. The Company covenants and agrees with the several Underwriters as
follows:
(a) to file the Prospectus in a form approved by you with the Commission
within the applicable time period prescribed for such filing by Rule 424; and to
furnish copies of the
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Prospectus to the Underwriters in New York City as soon as practicable following
the execution and delivery of this Agreement in such quantities as you may
reasonably request;
(b) to deliver to each Representative and counsel for the Underwriters, at
the expense of the Company, a conformed copy of the Registration Statement (as
originally filed) and each amendment thereto, including, in each case, to the
extent requested by such Underwriter or such counsel, exhibits and documents
incorporated by reference therein, and, during the period mentioned in paragraph
(e) below, to each of the Underwriters as many copies of the Prospectus
(including all amendments and supplements thereto) and documents incorporated by
reference therein as you may reasonably request, as soon as practicable after
their having been filed with the Commission;
(c) before filing any amendment or supplement to the Registration Statement
or the Prospectus during the period referred to in paragraph (e) below, to
furnish to you a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and not to file any
such proposed amendment or supplement to which you reasonably object;
(d) to file timely all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Securities, and during such same period, to advise you and counsel for the
Underwriters promptly, and to confirm such advice in writing, (i) when any
amendment to the Registration Statement shall have become effective, (ii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or threatening of
any proceeding for that purpose, (iv) of the occurrence of any event, within the
period referenced in paragraph (e) below, as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, and (v) of the receipt by the Company
of any notification with respect to any suspension of the qualification of the
Securities for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its best efforts to
prevent the issuance of any such stop order or notification and, if issued, to
obtain as soon as possible the withdrawal thereof;
(e) if, during such period after the first date of the public offering of
the Securities as in the opinion of counsel for the Underwriters a prospectus
relating to the Securities is required by law to be delivered in connection with
sales by an Underwriter or dealer, any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and furnish,
at the expense of the Company, to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to which Securities may
have been sold by you on behalf of the Underwriters and to any other dealers
upon request, such
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amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to continue such qualification in effect so long as reasonably
required for distribution of the Securities; provided that the Company shall not
be required to (x) file a general consent to service of process in any
jurisdiction, (y) make any undertaking with respect to the conduct of its
business or (z) provide any undertaking or make any change in its charter or
by-laws that the Board of Directors of the Company reasonably determines to be
contrary to the best interests of the Company and its stockholders;
(g) to make generally available to its security holders and to you as soon
as practicable but not later than 15 months after the effective date of the
Registration Statement (as defined in Rule 158(c) of the Commission promulgated
under the Securities Act) an earnings statement covering a period of at least
twelve months beginning with the first fiscal quarter of the Company occurring
after the effective date of the Registration Statement, which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder;
(h) during the period of five years commencing at the Closing Date, to
furnish to you copies of all reports or other communications (financial or
other) furnished generally to holders of Securities, and copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange;
(i) during the period beginning on the date hereof and continuing to and
including the Business Day following the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of or guaranteed by
the Company which are substantially similar to the Securities without your prior
written consent;
(j) to use the net proceeds of the offering of the Securities in the manner
specified in the Prospectus under "Use of Proceeds;" and
(k) the Company will pay all costs and expenses incident to the performance
of its obligations hereunder, including without limiting the generality of the
foregoing, all costs and expenses (i) incident to the preparation, issuance,
execution, authentication and delivery of the Securities, including any expenses
of the Trustee, (ii) incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, the Prospectus and any amendments
and supplements thereto at any time during which the Prospectus is required to
be delivered under the Securities Act or the Exchange Act in connection with the
sale of the Securities, (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the Securities
under the laws of such jurisdictions as the Underwriters may designate
(including reasonable fees and disbursements of counsel for the Underwriters),
(iv) related to any filing with the NASD, (v) in connection with the printing
(including word processing and duplication costs) and delivery of this
Agreement, the Remarketing Agreement, the Indenture, the Blue Sky Memorandum and
Blue
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Sky Survey and the furnishing to Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and shipping, as
herein provided and (vi) payable to rating agencies in connection with the
rating of the Securities.
6. The several obligations of the Underwriters hereunder to purchase the
Securities are subject to the performance by the Company of its obligations
hereunder and to the following conditions:
(a) the Prospectus shall have been filed with the Commission pursuant to
Rule 424 within the applicable time period prescribed for such filing by such
Rule; no stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be pending before
or threatened by the Commission;
(b) the representations and warranties of the Company contained herein
shall be true and correct in all material respects on and as of the Closing Date
as if made on and as of the Closing Date and the Company shall have complied in
all material respects with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and prior to
the Closing Date, there shall not have occurred any downgrading, nor shall any
notice have been given of (i) any intended or potential downgrading or (ii) any
review or possible change that does not indicate an improvement, in the rating
accorded any securities of or guaranteed by the Company by any "nationally
recognized statistical rating organization", as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given in the
Prospectus there shall not have been any material adverse change or any
development involving a prospective material adverse change, in or affecting the
general affairs, business, prospects, management, properties, financial
position, stockholders' equity or results of operations of the Company and the
Subsidiaries taken as a whole, in each case, otherwise than as set forth or
contemplated in the Prospectus, the effect of which in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus;
(e) you shall have received on and as of the Closing Date a certificate of
the President, Chief Executive Officer or Executive Vice President of the
Company and the Chief Financial or Accounting Officer of the Company
satisfactory to you to the effect set forth in subsections (a) through (c) of
this Section and to the further effect that there has not occurred any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the condition (financial or otherwise), business,
prospects, properties, net worth or results of operations of the Company and the
Subsidiaries taken as a whole, otherwise than as set forth or contemplated in
the Prospectus;
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(f) Goodwin, Procter & Hoar L.L.P., counsel for the Company, shall have
furnished to you its written opinion, dated the Closing Date, in form and
substance satisfactory to you, in substantially the form attached hereto as
Annex A;
(g) Cahill Gordon & Reindel, counsel for the Company, shall have furnished
to you its written opinion, dated the Closing Date, in form and substance
satisfactory to you, to the effect that:
(i) this Agreement has been duly authorized, executed and delivered by
the Company;
(ii) the Securities have been duly authorized and executed by the
Company and when authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of this Agreement, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture, enforceable in accordance with their terms, except that the
enforceability thereof may be limited by or subject to (a) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium
or similar laws now or hereafter in effect relating to creditors' rights
generally and (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or equity);
(iii) the Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding instrument of
the Company enforceable against the Company in accordance with its terms,
except that the enforceability thereof may be limited by or subject to (a)
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws now or hereafter in effect relating to
creditors' rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or equity); and the Indenture has been duly qualified under the Trust
Indenture Act;
(iv) the Indenture and the Securities conform in all material respects
to the descriptions thereof in the Registration Statement and the
Prospectus under the captions "Description of the Drs." and "Description of
Debt Securities";
(v) the statements in the Prospectus set forth under the caption
"Certain United States Federal Income Tax Considerations" to the extent
such information constitutes matters of law, summaries of legal matters, or
legal conclusions, have been reviewed by us and are accurate in all
material respects;
(vi) the Remarketing Agreement between the Company and JPMSI, as
remarketing dealer with respect to the Purchased Securities (as defined
therein) (the "Remarketing Agreement") has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally binding
instrument of the Company enforceable against the Company in accordance
with its terms, except that the enforceability thereof may be limited by
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or subject to (a) bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws now or hereafter in
effect relating to creditors' rights generally and (b) general principles
of equity (regardless of whether enforceability is considered in a
proceeding at law or equity;
(vii) other than as set forth or contemplated in the Prospectus, to
our knowledge, there are no legal or governmental proceedings pending (in
which service or notice of process has been received by an officer or other
representative of the Company or any Subsidiary), or threatened to which
the Company or the Subsidiaries are or may be a party or to which any
property of the Company or the Subsidiaries is or may be the subject which,
if determined adversely to the Company or the Subsidiaries, could
individually or in the aggregate reasonably be expected to have a Material
Adverse Effect; we do not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement
or required to be described in the Registration Statement or the Prospectus
which are not filed or described as required;
(viii) the Company is not, and will not become as a result of the
consummation of the transactions contemplated by this Agreement, an
"investment company" within the meaning of the Investment Company Act of
1940, as amended; (ix) the information in the Basic Prospectus under the
caption "Federal Income Tax Considerations" and under the first paragraph
of the caption "Restrictions on Transfers of Capital Stock" (except for the
last sentence thereof) to the extent that it constitutes statements of law,
descriptions of statutes, rules or regulations, summaries of documents or
legal conclusions, has been reviewed by such counsel and is correct in all
material respects and presents fairly the information required to be
disclosed therein;
(x) Each document filed by the Company with the Commission pursuant to
the Exchange Act on or before the date hereof (other than the financial
statements and supporting schedules included therein, as to which no
opinion is given) and incorporated or deemed to be incorporated by
reference in the Prospectus complied when so filed as to form in all
material respects with the requirements of the Exchange Act, it being
understood that in passing upon compliance as to the form of such
documents, we assume that the statements made therein are correct and
complete.
(xi) the Registration Statement has been declared effective under the
Securities Act, the Prospectus was filed with the Commission pursuant to
Rule 424 within the applicable time period prescribed by Rule 424, the
Indenture has been qualified under the Trust Indenture Act, and to such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act or
proceedings therefor initiated or threatened by the Commission; and
(xii) the Registration Statement, at the time it became effective, and
the Prospectus, as of the date of the Prospectus Supplement (in each case,
other than documents incor-
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<PAGE>
porated therein by reference and the financial statements and supporting
schedules and other financial and statistical data included or incorporated
by reference therein, as to which no opinion need be rendered) complied as
to form in all material respects with the requirements of the Securities
Act.
In addition, Cahill Gordon & Reindel shall state that they have
participated in conferences with officers and other representatives of the
Company and representatives of the independent public accountants for the
Company and representatives of the Underwriters at which the contents of
the Registration Statement and the Prospectus and related matters were
discussed. On the basis of the foregoing (relying as to materiality to a
large extent upon the opinions of officers and other representatives of the
Company), but without independent verification by such counsel, and without
passing upon or assuming any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or
the Prospectus or the documents incorporated therein by reference, no facts
have come to such counsel's attention which lead them to believe that (i)
the Registration Statement, including the documents incorporated therein by
reference, at the time the Company filed its Annual Report on Form 10-K for
the year ended December 31, 1996 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 (ii)
the Prospectus, including the documents incorporated therein by reference,
as of its date or on the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and schedules and other financial or statistical data
included in the Registration Statement, the Prospectus or the documents
incorporated therein by reference).
Cahill Gordon & Reindel need express no opinion (i) as to the
enforceability of forum selection clauses in the federal courts or (ii)
with respect to the requirements of, or compliance with, any state
securities or "Blue Sky" or real estate syndication laws. In addition,
Cahill Gordon & Reindel may rely as to all matters governed by the laws of
the State of Maryland upon the opinion of Goodwin, Procter & Hoar LLP.
(h) on the date of this Agreement and on the Closing Date, Coopers &
Lybrand L.L.P. shall have furnished to you letters, dated such date, in form and
substance reasonably satisfactory to you, containing statements and information
of the type customarily included in accountants "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus,
including, without limitation, a statement that they have made a review of the
unaudited financial statements for the nine months ended September 30, 1997
included or incorporated by reference in the Registration Statement in
accordance with the standards established by the American Institute of Certified
Public Accountants;
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(i) you shall have received on and as of the Closing Date an opinion of
Davis Polk & Wardwell, counsel to the Underwriters, with respect to the validity
of the Securities, the conformity of the Drs. to the description thereof and
other related matters as JPMSI may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters; in rendering their opinions as aforesaid,
such counsel may rely, as to matters of Maryland law, on the opinion or opinions
of Goodwin, Procter & Hoar L.L.P.;
(j) you shall have received on and as of the Closing Date an opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the Underwriters, with
respect to the Registration Statement, the Prospectus and other related matters
as JPMSI may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to pass
upon such matters; in rendering their opinions as aforesaid, such counsel may
rely, as to matters of Maryland law, on the opinion or opinions of Goodwin,
Procter & Hoar L.L.P.;
(k) on or prior to the Closing Date, the Company shall have executed and
delivered the Remarketing Agreement in a form acceptable to JPMSI, as
remarketing dealer thereunder; and
(l) on or prior to the Closing Date, the Company shall have furnished to
you such further certificates and documents confirming the representations and
warranties contained herein and related matters as you shall reasonably request.
The opinions and certificates mentioned in this Agreement shall be deemed
to be in compliance with the provisions hereof only if they are in all material
respects satisfactory to you and to Skadden, Arps, Slate, Meagher & Flom LLP,
counsel for the Underwriters.
7. The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including without
limitation the legal fees and other expenses incurred in connection with any
suit, action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein; provided, that the foregoing
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of the person controlling such
Underwriter) from whom the person asserting any such losses, claims, damages or
liabilities purchased Securities if such untrue statement or omission or alleged
untrue statement or omission made in such preliminary prospectus is eliminated
or remedied in the Pro-
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spectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) and, if required by law, a copy of the
Prospectus (as so amended or supplemented) shall not have been furnished to such
person at or prior to the written confirmation of the sale of such Securities to
such person, provided further that the Company shall have complied with its
obligations under Section 5(b) hereof with respect to the Prospectus (as so
amended or supplemented).
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus. For purposes of this Section 7 and Sections 4(a) and
4(b), the only written information furnished by the Underwriters to the Company
expressly for use in the Registration Statement and the Prospectus is (a) the
information in the last paragraph on the cover page of the Prospectus
specifically relating to the Securities, (b) the information regarding
transactions that may affect the price of the Drs. on the inside front cover
page of the Prospectus specifically relating to the Securities, (c) the
information in the third sentence under the caption "Use of Proceeds" and (d)
the information in the third and seventh paragraphs and the second sentence of
the fourth paragraph, under the caption "Underwriting" in the Prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Underwriters
and such control persons of Underwriters shall be designated in writing by JPMSI
and any such separate firm for the Company, its directors, its officers who sign
the Registration Statement and such control
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persons of the Company or authorized representatives shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by the third sentence of this paragraph,
the Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 60 days after receipt by such Indemnifying Person of the
aforesaid request, (ii) such Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement and (iii) such Indemnified Person shall not have received notice in
writing that such Indemnifying Person is contesting such request with
specificity and in good faith. If it is ultimately determined that an
Indemnified Person was not entitled to indemnification hereunder, such
Indemnified Person shall be responsible for repaying or reimbursing the
Indemnifying Person for any amounts so paid or incurred by such Indemnifying
Person pursuant to this paragraph. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above 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 that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Securities (before
deducting expenses) received by the Company and the total underwriting discounts
and the commissions received by the Underwriters, in each case, as reflected on
the cover page of the Prospectus, bear to the aggregate public offering price of
the Securities. The relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
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The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 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 that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such 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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amounts of Securities set forth opposite their names in
Schedule II hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations, warranties and covenants of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Underwriters by notice given to the
Company, if after the execution and delivery of this Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either federal or New York State authorities; or
(iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets in the United States or any calamity or crisis in
the United States that, in the judgment of the Underwriters is material and
adverse and which, in the judgment of the Underwriters, makes it impracticable
to market the Securities on the terms and in the manner contemplated in the
Prospectus.
20
<PAGE>
9. If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase Securities which it or they have agreed to purchase under
this Agreement, and the aggregate principal amount of Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of the Securities,
the other Underwriter or Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule II hereto bears to the aggregate principal amount
of Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as JPMSI may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 9 by an amount in
excess of one-ninth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased,
and arrangements satisfactory to the Underwriters and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
reasonable out-of-pocket expenses (including the fees and expenses of their
counsel) incurred by the Underwriters in connection with this Agreement or the
offering of Securities contemplated hereunder and the Company shall then be
under no further liability to any Underwriter except as provided in Sections
5(k) and 7 of this Agreement.
11. This Agreement shall inure to the benefit of and be legally binding
upon the Company, the Underwriters, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any other person, firm
or corporation any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by you jointly or
by JPMSI alone on behalf of the Underwriters, and any such action taken by you
jointly or by
21
<PAGE>
JPMSI alone shall be binding upon the Underwriters. 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 given to the Underwriters, c/o J.P. Morgan
Securities Inc., 60 Wall Street, New York, New York 10260, Attention: Syndicate
Department, with a copy to each of Skadden, Arps, Slate, Meagher & Flom LLP, 919
Third Avenue, New York, New York 10022, Attention: Gregory A. Fernicola, Esq.
and Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017,
Attention: Alan Dean, Esq. Notices to the Company shall be given to it at TriNet
Corporate Realty Trust, Inc., Four Embarcadero Center, Suite 3150, San
Francisco, CA 94111, Attention: Mark S. Whiting, President, with a copy to
Cahill Gordon & Reindel, 80 Pine Street, New York, New York 10005, Attention:
Gerald S. Tanenbaum, Esq.
13. This Agreement may be signed in counterparts, each of which shall be an
original and all of which together shall constitute one and the same instrument.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the conflicts of
laws provisions thereof.
Very truly yours,
TRINET CORPORATE REALTY TRUST, INC.
By: /s/ Geoffrey M. Dugan
-------------------------------------
Name: Geoffrey M. Dugan
Title: Vice President and General Counsel
22
<PAGE>
Accepted: February 24, 1998
J.P. MORGAN SECURITIES INC.
GOLDMAN, SACHS & CO.
By: J.P. MORGAN SECURITIES INC.
By: /s/ Patricia Lunka
--------------------------------
Name: Patricia Lunka
Title: Vice President
23
<PAGE>
Annex A
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus.
2. The Company has been duly qualified as a foreign corporation for the
transaction of business and is in good standing in each jurisdiction identified
in Schedule III to the Underwriting Agreement, which has been attached as
Appendix A hereto.
3. Each Subsidiary of the Company that is organized as a corporation (a
"Corporate Subsidiary") has been duly incorporated and is validly existing as a
corporation, in good standing under the laws of the State of Maryland. The
Subsidiaries of the Company that are organized as limited partnerships (the
"Limited Partnership Subsidiaries") have been duly formed and are validly
existing as limited partnerships in good standing under the laws of the State of
Delaware. Each of the Subsidiaries has the corporate or partnership, as the case
may be, power and authority to own its properties and conduct its business as
described in the Prospectus.
4. Each of the Subsidiaries has been duly qualified as a foreign
corporation or limited partnership, as the case may be, for the transaction of
business and is in good standing in each jurisdiction identified in Schedule IV
of the Underwriting Agreement, which has been attached as Appendix A hereto.
5. All of the outstanding shares of capital stock of each Corporate
Subsidiary have been duly authorized and validly issued, are fully paid and
nonassessable, and all of such shares of capital stock of each Corporate
Subsidiary are owned of record by the Company, free and clear of any perfected
security interests or, to our knowledge, any other liens, encumbrances, security
interests and claims, except for the security interest in the issued and
outstanding shares of capital stock of TriNet Essential Facilities XII, Inc.
listed in Schedule IV to the Underwriting Agreement; and based solely on our
review of the limited partnership agreements of each Limited Partnership
Subsidiary, except as set forth in Appendix A hereto all of the partnership
interests of such Limited Partnership Subsidiaries are owned by the Company
directly, or indirectly through Corporate Subsidiaries, as set forth in Appendix
A hereto, free and clear of any perfected security interests or, to our
knowledge, any other liens, encumbrances, security interests and claims.
6. The Underwriting Agreement has been duly authorized and executed by the
Company.
7. The Securities have been duly authorized and executed by the Company and
when authenticated in accordance with the terms of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms of the
Underwriting Agreement, will constitute valid and legally binding obligations of
the Company.
8. The Indenture has been duly authorized and executed by the Company.
9. The Remarketing Agreement has been duly authorized, executed and
delivered by the Company.
<PAGE>
10. The issue and sale of the Securities and the performance by the Company
of its obligations under the Securities, the Indenture, the Remarketing
Agreement and the Underwriting Agreement and the consummation of the
transactions therein contemplated will not (a) conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under any
of the documents identified in Appendix B hereto except for such conflicts,
breaches or defaults which individually or in the aggregate would not have a
Material Adverse Effect; (b) result in any violation of the provisions of the
Articles of Incorporation or the By laws of the Company; or (c) result in any
violation of any applicable law or statute or any order known to us, or any rule
or regulation of any court or governmental agency or body having jurisdiction
over the Company, its Subsidiaries or any of their respective Properties.
11. The authorized capital stock of the Company consists of 40 million
shares of common stock, $.01 par value per share, 25 million shares of excess
stock, $.01 par value per share, and 10 million shares of preferred stock, $.01
par value per share. The capital stock of the Company conforms to the
description thereof contained in the Prospectus; and all of the issued and
outstanding shares of capital stock of the Company are duly authorized, validly
issued, fully paid and nonassessable.
12. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the issue and sale of the Securities or the consummation of the other
transactions contemplated by the Underwriting Agreement (including entering into
the Remarketing Agreement), except such consents, approvals, authorizations,
orders, registrations or qualifications as have been obtained under the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the Trust Indenture Act, and as may be required under state
securities or Blue Sky laws or Corporate Financing Rules of the National
Association of Securities Dealers, Inc. in connection with the purchase and
distribution of the Securities by the Underwriters.
13. Commencing with the Company's taxable year ended December 31, 1993, the
Company has been organized in conformity with the requirements for qualification
as a "real estate investment trust", and its method of operation, as described
in the Registration Statement and set forth in the Certificate, has enabled the
Company to meet and, provided that the Company continues to meet the applicable
asset composition, source of income, shareholder diversification, distribution,
record keeping and other requirements of the Code necessary for a corporation to
qualify as a REIT, will enable it to continue to meet the requirements for
qualification and taxation as a "real estate investment trust" under the Code.
2
<PAGE>
APPENDIX B
(a) Amended and Restated Articles of Incorporation. (Incorporated by
reference to Exhibit 3.1(i) to the Registration Statement on Form S-11 of TriNet
Corporate Realty Trust, Inc., Registration No. 33-59836.)
(b) Amended and Restated By laws. (Incorporated by reference to Exhibit
3.1(ii) to the Registration Statement on Form S-11 of TriNet Corporate Realty
Trust, Inc., Registration No. 33-59836.)
(c) TriNet Corporate Realty Trust, Inc. Amended and Restated 1993 Stock
Incentive Plan. (Incorporated by reference to Exhibit 10.24 to the Registration
Statement on Form S-11, of TriNet Corporate Realty Trust, Inc., Registration No.
33-59836.)
(d) Interest Rate Protection Agreement dated May 21, 1993, between certain
of the Company's subsidiaries and UBS Securities (Swaps), Inc. (Incorporated by
reference to Exhibit 10.32 to the Registration Statement on Form S-11, of TriNet
Corporate Realty Trust, Inc., Registration No. 33-74284.)
(e) Reorganization Agreement dated as of May 21, 1993, between the Company
and Holman/Shidler Corporate Capital, Inc. (Incorporated by reference to Exhibit
10.41 to the Registration Statement on Form S-11, of TriNet Corporate Realty
Trust, Inc., Registration No. 33-74284.)
(f) Form of Noncompetition Agreement dated as of June 2, 1993, between the
Company and certain of its executive officers. (Incorporated by reference to
Exhibit 10.31 to the Registration Statement on Form S-11, of TriNet Corporate
Realty Trust, Inc., Registration No. 33-59836.)
(g) Form of Option Agreement between the Company and its executive
officers. (Incorporated by reference to Exhibit 10.32 to the Registration
Statement on Form S-11, of TriNet Corporate Realty Trust, Inc., Registration No.
33-59836.)
(h) Indemnification Agreements between the Company and the Independent
Directors. (Incorporated by reference to Exhibit 10 to Form 10-Q of TriNet
Corporate Realty Trust, Inc., dated August 12, 1993, Commission File No.
1-11918.)
(i) TriNet Corporate Realty Trust, Inc. 1993-1994 Performance Based
Management Incentive Plan. (Incorporated by reference to Exhibit 10.49 to the
Registration Statement on Form S-11, of TriNet Corporate Realty Trust, Inc.,
Registration No. 33-74284.)
(j) Description of TriNet Corporate Realty Trust, Inc. Savings and
Retirement Plan. (Incorporated by reference to Exhibit 10.50 to the Registration
Statement on Form S-11, of TriNet Corporate Realty Trust, Inc., Registration No.
33-74284.)
<PAGE>
(k) TriNet Corporate Realty Trust, Inc. 1995 Stock Incentive Plan.
(Incorporated by reference to Exhibit 4.1 to the Registration Statement on Form
S-8, of TriNet Corporate Realty Trust, Inc., Registration No. 333-02222.)
(l) Management Agreement dated as of June 3, 1993, by and among the Company
and certain of its subsidiaries. (Incorporated by reference to Exhibit 10.51 to
the Registration Statement on Form S-11, of TriNet Corporate Realty Trust, Inc.,
Registration No. 33-74284.)
(m) Lease Agreement between Chem Network Processing Services and AT&T
Resource Management Corporation, dated April 20, 1990, as assigned to TriNet
Essential Facilities XIV, Inc. on April 18, 1995. (Incorporated by reference to
Exhibit 10.3 to the Current Report on Form 8-K dated May 2, 1995 of TriNet
Corporate Realty Trust, Inc.)
(n) Purchase Agreement between TriNet Essential Facilities XIV, Inc. and
P.G. Associates Limited Partnership, dated March 13, 1995. (Incorporated by
reference to Exhibit 10.2 to the Current Report on Form 8-K dated May 2, 1995 of
TriNet Corporate Realty Trust, Inc.)
(o) First Amendment to Purchase Agreement between TriNet Essential
Facilities XIV, Inc. and P.G. Associates Limited Partnership, dated April 18,
1995. (Incorporated by reference to Exhibit 10.3 to the Current Report on Form
8-K dated May 2, 1995 of TriNet Corporate Realty Trust, Inc.)
(p) Management Incentive Agreement between TriNet Essential Facilities XIV,
Inc. and P.G. Associates Limited Partnership, dated April 18, 1995.
(Incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K
dated May 2, 1995 of TriNet Corporate Realty Trust, Inc.)
(q) Management Agreement between TriNet Essential Facilities XIV, Inc. and
P.G. Associates Limited Partnership, dated April 18, 1995. (Incorporated by
reference to Exhibit 10.5 to the Current Report on Form 8-K dated May 2, 1995 of
TriNet Corporate Realty Trust, Inc.)
(r) Purchase Agreement between TriNet Corporate Partners I, L.P. and
National Tea Corporation, dated November 1, 1994. (Incorporated by reference to
Exhibit 10.1 to the Current Report on Form 8-K dated June 23, 1995 of TriNet
Corporate Realty Trust, Inc.)
(s) First Amendment to Purchase Agreement between TriNet Corporate Partners
I, L.P. and National Tea Corporation, dated November 1, 1994. (Incorporated by
reference to Exhibit 10.2 to the Current Report on Form 8-K dated June 23, 1995
of TriNet Corporate Realty Trust, Inc.)
(t) Second Amendment to Purchase Agreement between TriNet Corporate
Partners I, L.P. and National Tea Corporation, dated February 1, 1995.
(Incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K
dated June 23, 1995 of TriNet Corporate Realty Trust, Inc.)
2
<PAGE>
(u) Third Amendment to Purchase Agreement between TriNet Corporate Partners
I, L.P. and National Tea Corporation, dated May 1, 1995. (Incorporated by
reference to Exhibit 10.4 to the Current Report on Form 8-K dated June 23, 1995
of TriNet Corporate Realty Trust, Inc.)
(v) Loan Agreement dated as of December 6, 1994 by and among Nomura Asset
Capital Corporation, Pacific Mutual Life Insurance Company and TriNet Essential
Facilities XII, Inc. (Incorporated by reference to Exhibit 10.1 to the
Registration Statement on Form S-3 of TriNet Corporate Realty Trust, Inc.,
Registration No. 33-87256.)
(w) Indenture dated May 22, 1996 between the Company and Harris Trust and
Savings Bank. (Incorporated by reference to Exhibit 4.2 to the Current Report on
Form 8-K dated June 14, 1996 of TriNet Corporate Realty Trust, Inc.)
(x) Supplemental Indenture No. 1 dated May 22, 1996 between the Company and
Harris Trust and Savings Bank. (Incorporated by reference to Exhibit 4.1 to the
Current Report on Form 8-K dated June 14, 1996 of TriNet Corporate Realty Trust,
Inc.)
(y) Articles Supplementary Establishing and Fixing the Rights and
Preferences of a Series of Shares of Preferred Stock relating to the Series A
Cumulative Preferred Stock, as filed with the Maryland State Department of
Assessments and Taxation on June 17, 1996. (Incorporated by reference to Exhibit
1 to Form 8-A/A of TriNet Corporate Realty Trust, Inc., dated June 26, 1996,
filed with the Securities and Exchange Commission on June 28, 1996.)
(z) Amended and Restated Agreement of Limited Partnership between TriNet
Corporate Realty Trust, Inc., and the O'Donnell Revocable Trust, the Donald S.
Grant Revocable Trust and John W. Hopkins, dated June 26, 1996. (Incorporated by
reference to Exhibit 10.1 to the Current Report on Form 8-K dated July 3, 1996
of TriNet Corporate Realty Trust, Inc., filed with the Securities and Exchange
Commission on July 17, 1996 and as amended by Form 8-K/A dated July 3, 1996 of
TriNet Corporate Realty Trust, Inc., filed with the Securities and Exchange
Commission on August 7, 1996.)
(aa) Definitive Articles Supplementary Establishing and Fixing the Rights
and Preferences of a Series of Shares of Preferred Stock (Series B Preferred
Stock). (Incorporated by reference to Exhibit 1 to Form 8-A/A of TriNet
Corporate Realty Trust, Inc., dated August 9, 1996, filed with the Securities
and Exchange Commission on August 12, 1996.)
(bb) Second Amended and Restated Revolving Credit Agreement among TriNet
Corporate Realty Trust, Inc., as borrower, Morgan Guaranty Trust Company of New
York, as lead agent, and First National Bank of Boston, as managing co-agent,
dated as of April 22, 1997.
(cc) TriNet Corporate Realty Trust, Inc. 1997 Stock Incentive Plan.
(dd) Supplemental Indenture No. 2, dated as of July 14, 1997, between the
Company and Harris Trust and Savings Bank, relating to the 7.70% Notes due 2017
and including the form of the 7.70% Note due 2017.
3
<PAGE>
(ee) Definitive Articles Supplementary Establishing and Fixing the Rights
and Preferences of a Series of Shares of Preferred Stock (Series C Preferred
Stock). (Incorporated by reference to Exhibit 1 to Form 8-A of TriNet Corporate
Realty Trust, Inc., dated October 3, 1997, filed with the Securities and
Exchange Commission on October 14, 1997.)
4
<PAGE>
SCHEDULE I
Underwriters: J.P. Morgan Securities Inc. and
Goldman, Sachs &Co.
Underwriting Agreement dated: February 24, 1998
Registration Statement No.: 333-42717
Title of Securities: 6.75% Dealer remarketable
securities_ ("Drs._") due 2013
Aggregate principal amount: $125,000,000
Price to Public: 99.706% of the principal amount of
the Drs., plus accrued and unpaid
interest, if any, from February 27,
1998
Purchase Price: 99.106% of the principal amount of
the Drs., plus accrued and unpaid
interest, if any, from February 27,
1998
Indenture: Indenture to be dated as of
February 27, 1998 and the Supple-
mental Indenture to be dated as of
February 27, 1998, both between
TriNet Corporate Realty Trust, Inc.
and Harris Trust and Savings Bank,
as trustee the "Trustee")
Maturity: March 1, 2013
Interest Rate: 6.75% until the Remarketing Date.
Thereafter, if the Drs. remain
outstanding, they will bear interest
at the Interest Rate to Maturity
determined in accordance with the
procedures described in the Prospec-
tus Supplement dated February 24,
1998 to the Prospectus dated
December 30, 1997 (together, the
"Prospectus")
Interest Payment Dates: March 1 and September 1, commencing
September 1, 1998
Remarketing/Mandatory
Repurchase Provisions: The Drs. are subject to mandatory
tender on March 1, 2003 (the
"Remarketing Date"). If J.P.
Morgan Securities Inc., as
Remarketing Dealer (the "Remarketing
Dealer"), has elected to remarket
the Drs. as described in the Pros-
pectus, the Drs. will be subject to
mandatory tender to the Remarketing
Dealer at 100% of the principal
amount thereof for remarketing on
the Remarketing Date. If the Remar-
keting Dealer elects not to remarket
the Drs., or for any reason does not
purchase all of the Drs. on the
Remarketing Date, the Company will
be required to purchase on the Re-
marketing Date any Drs. that have
not been purchased by the
<PAGE>
Remarketing Dealer at 100% of the
principal amount thereof plus
accrued interest, if any.
Redemption: The Drs. will be redeemable, in
whole or in part, at the option
of the Company at any time prior to
or after the Remarketing Date at a
redemption price equal to the sum of
(1) the principal amount of the Drs.
being redeemed plus accrued interest
thereon to the redemption date plus
(2) the Make-Whole Amount (as de-
fined in the Prospectus), if any,
with respect to such Drs.
The Drs. will be redeemable on the
Remarketing Date on the terms
described in the Prospectus.
Sinking Fund Provisions: None
Remarketing Agreement: The Company and the
Remarketing Dealer shall execute and
deliver a remarketing agreement on
or prior to the Closing Date. In
consideration therefor, the
Remarketing Dealer shall make a
payment to the Company on the
Closing Date equal to2.660% of the
principal amount of the Drs.
Other Significant Provisions: As set forth in the Prospectus
Closing Date and Time of Delivery: The Closing will be held at 9:00
a.m. (E.S.T.) on February 27, 1998,
with the Securities being delivered
through the book-entry facilities
of The Depository Trust Company
("DTC") and made available for
checking by DTC and the Trustee at
least 24 hours prior to the Closing
Date.
Closing Location: Skadden, Arps, Slate,
Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
2
<PAGE>
SCHEDULE II
Principal Amount
Underwriter of Drs. to Be Purchased
J.P. Morgan Securities Inc. .................... $ 75,000,000
Goldman, Sachs & Co. ........................... 50,000,000
-----------
Total........................................... $125,000,000
============
<PAGE>
SCHEDULE III
STATES OF
FOREIGN QUALIFICATION OF
TRINET CORPORATE REALTY TRUST, INC.
California
Florida
Pennsylvania
<PAGE>
SCHEDULE IV
<TABLE>
<CAPTION>
- ------------------------------------------- ----------------- -------------------------- ------------------------ -------------
Jurisdiction Percentage of
Name of of States of Foreign Equity Interest Title
Subsidiary Organization Qualification Owned by Company Exceptions
<S> <C> <C> <C> <C>
TriNet Essential Facilities I, Inc. Maryland Pennsylvania 100% None
TriNet Essential Facilities II, Inc. Maryland Michigan 100% None
TriNet Essential Facilities III, Inc. Maryland Alabama, Florida, 100% None
Georgia, Illinois,
Indiana, Iowa,
Mississippi, New York,
Ohio, Tennessee, West
Virginia
TriNet Essential Facilities IV, Inc. Maryland Illinois 100% None
TriNet Essential Facilities V, Inc. Maryland California 100% None
TriNet Essential Facilities VI, Inc. Maryland Illinois 100% None
TriNet Essential Facilities VII, Inc. Maryland Arizona 100% None
TriNet Essential Facilities VIIIR, Inc. Maryland California, Florida, 100% None
Minnesota, Nevada,
Washington
TriNet Essential Facilities X, Inc. Maryland California, Colorado, 100% None
Florida, Georgia,
Illinois, Indiana,
Missouri, New York,
Ohio, Pennsylvania,
Texas, Utah
TriNet Essential Facilities XI, Inc. Maryland Ohio, Kansas 100% None
TriNet Essential Facilities XII, Inc. Maryland California, Florida, 100% (1)
Illinois, Louisiana,
Minnesota, New York,
Ohio, Tennessee, Texas
TriNet Essential Facilities XIV, Inc. Maryland New Jersey 100% None
TriNet Essential Facilities XV, Inc. Maryland None 100% None
TriNet Essential Facilities XVI, Inc. Maryland None 100% None
TriNet Essential Facilities XVIII, Inc. Maryland Texas 100% None
TriNet Essential Facilities XIX, Inc. Maryland None 100% None
TriNet Corporate Partners I, L.P. Delaware Louisiana 100%(2) None
TriNet Corporate Partners II, L.P. Delaware Texas, Tennessee 100%(3) None
TriNet Essential Facilities XX, Inc. Maryland California, Wisconsin 100% None
TriNet Essential Facilities XXI, Inc. Maryland South Carolina 100% None
TriNet Essential Facilities XXII, Inc. Maryland California, Colorado 100% None
<PAGE>
- ------------------------------------------- ----------------- -------------------------- ------------------------ -------------
Jurisdiction Percentage of
Name of of States of Foreign Equity Interest Title
Subsidiary Organization Qualification Owned by Company Exceptions
TriNet Essential Facilities XXIII, Inc. Maryland California, Georgia, 100% None
Massachusetts
TriNet Essential Facilities XXIV, Inc. Maryland California 100% None
TriNet Essential Facilities XXV, Inc. Maryland California 100% None
TriNet Essential Facilities XXVI, Inc. Maryland California 100% None
TriNet Essential Facilities XXVII, Inc. Maryland Arizona, California 100% None
TriNet Property Management, Inc. Maryland California, Georgia, 100% None
Florida, Texas
TriNet Sunnyvale Partners, L.P. Delaware California 44.7%(4) None
TriNet Realty Investors I, Inc. Maryland Massachusetts 100% None
TriNet Property Partners, L.P. d/b/a Delaware Massachusetts (5) None
TriNet Property Partners Limited
Partnership
TriNet Essential Facilities XXVIII, Inc. Maryland Massachusetts 100% None
TriNet Realty Investors II, Inc. Maryland None 100% None
</TABLE>
- ----------
(1) Common Stock pledged in connection with the 1994 Mortgage Loan (as defined
in the Prospectus).
(2) Owned 1% by TriNet Essential Facilities XVI, Inc., as general partner, and
99% by TriNet Essential Facilities XV, Inc., as limited partner.
(3) Owned 1% by TriNet Essential Facilities XVIII, Inc., as general partner,
and 99% by TriNet Essential Facilities XIX, Inc., as limited partner.
(4) Owned 44.7% by TriNet Corporate Realty Trust, Inc., as general partner.
TriNet Corporate Realty Trust, Inc. does not own any of the limited
partnership interests in this partnership.
(5) TriNet Realty Investors I, Inc. is the sole general partner with a 99%
Initial Percentage Interest.
2
REMARKETING AGREEMENT dated as of February 27, 1998 (the "Remarketing
Agreement") between TriNet Corporate Realty Trust, Inc., a Maryland corporation
(the "Company"), and J.P. Morgan Securities Inc. ("JPMSI" and, in its capacity
as the remarketing dealer hereunder, the "Remarketing Dealer").
WHEREAS, the Company has issued $125,000,000 aggregate principal amount of
its 6.75% Dealer remarketable securitiesSM ("Drs.SM") pursuant to an Indenture
dated as of February 27, 1998 (the "Base Indenture"), and a supplemental
indenture dated the same date (the "Supplemental Indenture" and, together with
the Base Indenture, the "Indenture"), in each case between the Company and
Harris Trust and Savings Bank, as trustee (the "Trustee"); and
WHEREAS, the Drs. are being sold initially pursuant to an Underwriting
Agreement dated as of February 24, 1998 (the "Underwriting Agreement") between
the Company and JPMSI and Goldman, Sachs & Co., as Underwriters; and
WHEREAS, the Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-42717) under the Securities
Act of 1933, as amended (the "Securities Act"), in connection with the offering
of debt securities, including the Drs., which registration statement was
declared effective by order of the Commission, and has filed such amendments
thereto and such amended or supplemented prospectuses as may have been required
to the date hereof, and will file such additional amendments and supplements
thereto and such additional amended or supplemented prospectuses as may
hereafter be required (such registration statement, including any amendments and
supplements thereto, and all documents incorporated therein by reference, as
from time to time amended or supplemented pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), the Securities Act, or otherwise,
are referred to herein as the "Registration Statement"); all preliminary and
final prospectuses relating to such Registration Statement used in connection
with the offering of Drs., including the documents incor-
- ----------
SM "Dealer remarketable securities(SM)" and "Drs.(SM)" are service marks of
J.P. Morgan Securities Inc.
<PAGE>
-2-
porated by reference therein, are referred to herein collectively as the
"Prospectus"; provided that, if any new or revised prospectus shall be provided
to the Remarketing Dealer by the Company for use in connection with the
remarketing of the Drs. which differs from the Prospectus filed with the
Commission at the time of the initial issuance of the Drs. (whether or not such
revised prospectus is required to be filed by the Company pursuant to Rule
424(b) under the Securities Act), the terms "Prospectus" shall refer to such new
or revised prospectus from and after the time it is first provided to the
Remarketing Dealer for such use, and "Registration Statement" shall refer to the
Registration Statement as deemed amended by the prospectus so provided or any
new registration statement of which such prospectus is a part; and
WHEREAS, JPMSI is prepared to act as the Remarketing Dealer with respect to
the remarketing of the Drs. on March 1, 2003 (the "Remarketing Date") pursuant
to the terms of, but subject to the conditions set forth in, this Agreement;
NOW, THEREFORE, for and in consideration of the covenants herein made, and
subject to the conditions herein set forth, the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Indenture and the form
of the Drs.
SECTION 2. Representations and Warranties. (a) The Company represents and
warrants to the Remarketing Dealer as of the date hereof, the Notification Date
(as defined below), the Determination Date (as defined below) and the
Remarketing Date (each of the foregoing dates being hereinafter referred to as a
"Representation Date"), as follows:
(i) It has filed all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (collectively, the
"Exchange Act Documents").
(ii) The applicable Remarketing Materials (as defined below) will not,
as of their date or the Remarketing Date, include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
<PAGE>
-3-
(iii) The representations and warranties contained in the Underwriting
Agreement are true and correct with the same force and effect as though
expressly made at and as of each Representation Date; except that for
purposes of this Agreement, representations and warranties in the
Underwriting Agreement relating to the Registration Statement and the
Prospectus (as defined therein) shall be made with respect to such
documents as deemed modified by the Exchange Act Documents, as well as any
new or revised registration statement and new or revised prospectus
required by subsection 3(f) herein, and the date as of which such
representations and warranties are made shall include each Representation
Date.
(iv) Since the respective dates as of which information is given in
the Remarketing Materials or the Exchange Act Documents, there has not been
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the Remarketing Materials or
the Exchange Act Documents.
(v) This Agreement has been duly authorized, executed and delivered by
the Company.
(vi) The issue and sale of the Drs. and the performance by the Company
of all of its obligations under the Drs., the Indenture and this Agreement
and the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, except for such
conflicts, breaches or defaults which individually or in the aggregate
would not have a Material Adverse Effect (as defined in the Underwriting
Agreement) nor will any such action result in any violation of the
provisions of the Articles of Incorporation or the By-Laws of the Company
or any applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company,
its subsidiaries or any of their respective
<PAGE>
-4-
properties. No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Drs. or the consummation by the
Company of the transactions contemplated by this Agreement or the
Indenture, except such as have already been obtained.
(b) Additional Certifications. Any certificate signed by any director or
officer of the Company and delivered to the Remarketing Dealer or to counsel for
the Remarketing Dealer in connection with the remarketing of the Drs. shall be
deemed a representation and warranty by the Company to the Remarketing Dealer as
to the matters covered thereby.
SECTION 3. Covenants of the Company. The Company covenants with the
Remarketing Dealer as follows:
(a) The Company will provide prompt notice by telephone, confirmed in
writing (which may include facsimile or other electronic transmission), to the
Remarketing Dealer whenever
(i) at any time, (x) any event set forth in clause (i) or (ii) of
subsection 8(c) occurs, (y) any amendment of any kind shall have been made
to the Indenture (including the Drs.) or (z) the Company shall exercise its
option to redeem the Drs. in accordance with the terms thereof; and
(ii) on or after the Notification Date, any event set forth in clauses
(i) or (ii) of subsection 8(d) occurs.
(b) The Company will furnish to the Remarketing Dealer upon request:
(i) each Registration Statement and the Prospectus relating to the
Drs. (including in each case any amendment or supplement thereto and each
document incorporated therein by reference), other than Exchange Act
Documents publicly available on the Commission's internet website, and
(ii) in connection with the remarketing of Drs. such other publicly
available written information as the Remarketing Dealer may reasonably
request from time to time, other than Exchange Act Documents publicly
available on the Commission's internet website.
<PAGE>
-5-
The Company agrees to provide the Remarketing Dealer with as many copies of the
foregoing written materials and other Company-approved information as the
Remarketing Dealer may reasonably request for use in connection with the
remarketing of Drs. and consents to the use thereof for such purpose.
(c) If, at any time within three months of the Remarketing Date, any event
or condition known to the Company relating to or affecting the Company, any
subsidiary thereof or the Drs. shall occur which could reasonably be expected to
cause any of the materials or information referred to in subsection (b) above,
any Exchange Act Documents or any document incorporated therein by reference
(collectively, the "Remarketing Materials") to contain an untrue statement of a
material fact or omit to state a material fact, the Company shall promptly
notify the Remarketing Dealer in writing of the circumstances and details of
such event or condition.
(d) So long as the Drs. are outstanding, the Company will file all
documents required to be filed with the Commission pursuant to the Exchange Act
within the time periods required by the Exchange Act and the rules and
regulations thereunder.
(e) The Company will comply with the Securities Act, the Exchange Act, the
Trust Indenture Act and the rules and regulations of the Commission thereunder
so as to permit the completion of the remarketing of the Drs. as contemplated in
(i) this Agreement, (ii) the Prospectus first used to confirm sales of the Drs.
when the Drs. were originally issued, and (iii) the prospectus, if any, used in
connection with the remarketing.
(f) If a new or amended Registration Statement in respect of the Drs. is,
in the opinion of counsel for the Remarketing Dealer or for the Company,
necessary to sell Drs. on an unrestricted basis on the Remarketing Date, then
the Company, at its expense, will, on or before the Remarketing Date:
(i) prepare and file with the Commission such amended or new
Registration Statement (including a Prospectus) covering such sale of Drs.
by the Remarketing Dealer, and cause such Registration Statement to become
effective;
(ii) furnish to the Remarketing Dealer such number of copies of such
Prospectus as the Remarketing Dealer may reasonably request;
<PAGE>
-6-
(iii) furnish to the Remarketing Dealer an officers' certificate, an
opinion, including a statement as to the absence of material misstatements
in or omissions from such Registration Statement and Prospectus, of Cahill
Gordon & Reindel or such other counsel to the Company reasonably
satisfactory to the Remarketing Dealer and a "comfort letter" from the
Company's independent accountants, in each case dated as of the Remarketing
Date and in form and substance satisfactory to the Remarketing Dealer, of
the same tenor as the officers' certificate, opinion and comfort letter,
respectively, delivered to satisfy the closing conditions of the
Underwriting Agreement, but modified to relate to such new or amended
Registration Statement and Prospectus; and
(iv) provide to the Remarketing Dealer and any other securities dealer
participating in the remarketing of the Drs. the opportunity to conduct an
underwriters' due diligence investigation of the Company in a scope
customarily provided in connection with a public offering of the Company's
debt securities.
Furthermore, if at any time when, in the opinion of counsel for the
Remarketing Dealer, a prospectus is required by the Securities Act to be
delivered in connection with remarketing of the Drs., any event shall occur or
condition shall exist as a result of which it is necessary to amend the
Registration Statement or amend or supplement the Prospectus in order that such
Prospectus will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it is necessary to amend or supplement the
Prospectus to comply with law, the Company, at its expense, will promptly
furnish to the Remarketing Dealer such amendments or supplements to the
Prospectus as may be needed so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus
will comply with law.
(g) The Company agrees that neither it nor any of its subsidiaries or
affiliates shall purchase or otherwise acquire, or enter into any agreement to
purchase or otherwise acquire, any of the Drs. prior to the remarketing thereof
by the Remarketing Dealer, other than (x) a repurchase of the Drs.
<PAGE>
-7-
in accordance with subsection 4(g), (y) a redemption of the Drs. in accordance
with subsection 4(h) or (z) a redemption in accordance with the terms of the
Drs.
(h) The Company will comply with each of the covenants set forth in the
Underwriting Agreement.
(i) In connection with the remarketing, the Company will endeavor to
qualify the Drs. for offer and sale under the Securities or Blue Sky laws of
such jurisdictions as the Remarketing Dealer shall reasonably request and to
continue such qualifications in effect so long as reasonably required for the
remarketing of the Drs.; provided, that the Company shall not be required to
file a general consent to service of process in any jurisdiction or to make any
undertaking with respect to the conduct of business; or provide any undertaking
or make any change in its charter or by-laws that the Board of Directors of the
Company reasonably determines to be contrary to the best interests of the
Company and its stockholders; the Company will pay all expenses in connection
with such qualification, including the reasonable fees and disbursements of
counsel for any dealers participating in the remarketing in connection with such
qualification and in connection with blue sky and legal investment surveys.
(j) During the five Business Day period ending on the Remarketing Date, the
Company will not, without the consent of the Remarketing Dealer, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or announce
the offering of, any debt securities.
SECTION 4. Appointment and Obligations of the Remarketing Dealer. (a)
Unless this Agreement is otherwise terminated in accordance with Section 10
hereof, in accordance with the terms, but subject to the conditions, of this
Agreement, the Company hereby appoints JPMSI, and JPMSI hereby accepts such
appointment, as the exclusive Remarketing Dealer with respect to the Drs.,
subject to (i) the repurchase of the Drs. in accordance with subsection 4(g),
(ii) the redemption of the Drs. in accordance with subsection 4(h) hereof and
(iii) the optional redemption of the Drs. by the Company in accordance with the
terms of the Drs.
(b) The obligations of the Remarketing Dealer hereunder to purchase the
tendered Drs. on the Remarketing Date, to determine the Interest Rate to
Maturity pursuant to subsection 4(d) and to remarket the Drs. are conditioned
on:
<PAGE>
-8-
(i) the issuance and delivery of such Drs. pursuant to the terms and
conditions of the Underwriting Agreement;
(ii) the Remarketing Dealer's election on the Notification Date to
purchase the Drs. for remarketing on the Remarketing Date and
(iii) the fact that the conditions set forth in Section 8 hereof shall
have been fully and completely met to the satisfaction of the Remarketing
Dealer.
(c) On a Business Day not later than five Business Days prior to the
Remarketing Date (the "Notification Date"), the Remarketing Dealer will notify
the Company and the Trustee as to whether it elects to purchase the Drs. on the
Remarketing Date. If, and only if, the Remarketing Dealer so elects, the Drs.
shall be subject to mandatory tender to the Remarketing Dealer for purchase and
remarketing on the Remarketing Date, upon the terms and subject to the
conditions described herein. The purchase price of the Drs. shall be equal to
100% of the principal amount thereof.
(d) The Remarketing Dealer shall determine a new stated interest rate on
the Drs. as of the Remarketing Date (the "Interest Rate to Maturity") on the
third Business Day immediately preceding the Remarketing Date (the
"Determination Date") by soliciting by 3:30 p.m., New York City time, the
Reference Corporate Dealers (defined below) for firm, committed bids to purchase
all outstanding Drs. at the Dollar Price (defined below), and by selecting the
lowest such firm, committed bid (regardless of whether each of the Reference
Corporate Dealers actually submit bids). Each bid shall be expressed in terms of
the Interest Rate to Maturity that the Drs. would bear (quoted as a spread over
5.657% per annum (the "Base Rate")) based on the following assumptions:
(i) the Drs. would be sold to such Reference Corporate Dealer on the
Remarketing Date for settlement on the same day;
(ii) the Drs. would mature on the Stated Maturity Date;
(iii) the Drs. would bear interest from the Remarketing Date at a
stated rate equal to the Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi-annually on the interest payment dates for
the Drs. and
<PAGE>
-9-
(iv) the winning bidder will bear all of its own expenses (including
legal fees) in connection with the remarketing.
The Interest Rate to Maturity announced by the Remarketing Dealer as a
result of such process will be quoted to the nearest one hundred-thousandth
(0.00001) of one percent per annum and, absent manifest error, will be binding
and conclusive upon holders of the Drs., the Company and the Trustee. Subject
only to subsection (e), below, the Remarketing Dealer shall have the discretion
to select the time at which the Interest Rate to Maturity is determined on the
Determination Date.
The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Drs. for its own account or (ii) sell the Drs. to the
Reference Corporate Dealer submitting the lowest firm, committed, bid pursuant
to subsection 4(d). If two or more Reference Corporate Dealers submit equivalent
bids which constitute the lowest firm, committed bid, the Remarketing Dealer may
in its sole discretion elect to sell the Drs. to any such Reference Corporate
Dealer.
"Dollar Price" means the discounted present value to the Remarketing Date
of the cash flows on a bond (x) with a principal amount equal to the aggregate
principal amount of the Drs., (y) maturing on the Stated Maturity Date and (z)
bearing interest from the Remarketing Date, payable semi-annually (assuming a
360-day year consisting of twelve 30-day months) on the interest payment dates
of the Drs. at a rate equal to the Base Rate, using a discount rate equal to the
Treasury Rate (defined below).
"Reference Corporate Dealer" means J.P. Morgan Securities Inc. and four
other leading dealers of publicly-traded debt securities of the Company to be
chosen by the Company and approved by the Remarketing Dealer. If any of such
persons shall cease to be a leading dealer of publicly-traded debt securities of
the Company, then the Remarketing Dealer may replace such person with any other
leading dealer of publicly-traded debt securities of the Company.
"Treasury Rate" means the annual rate equal to the semi-annual equivalent
yield to maturity or interpolated (on a 30/360 day count basis) yield to
maturity on the Determination Date of the Comparable Treasury Issue (defined
below) for value on the Remarketing Date, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal
<PAGE>
-10-
amount) equal to the Comparable Treasury Price (as defined below).
"Comparable Treasury Issue" means the United States Treasury security
selected by the Remarketing Dealer as having an actual or interpolated maturity
on the Determination Date comparable to the remaining term of the Drs.
"Comparable Treasury Price" means (a) the offer price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) on the
Determination Date, as set forth on Telerate Page 500 (as defined below),
adjusted to reflect settlement on the Remarketing Date if prices quoted on
Telerate Page 500 are for settlement on any date other than the Remarketing
Date, or (b) if such page (or any successor page) is not displayed or does not
contain such offer prices on such Business Day, (i) the average of five
Reference Treasury Dealer Quotations for such Remarketing Date, excluding the
highest and lowest of such Reference Treasury Dealer Quotations (unless there is
more than one highest or lowest quotation, in which case only one such highest
and/or lowest quotation shall be excluded), or (ii) if the Remarketing Dealer
obtains fewer than four such Reference Treasury Dealer Quotations, the average
of all such Reference Treasury Dealer Quotations. "Telerate Page 500" means the
display designated as "Telerate Page 500" on Dow Jones Markets Limited (or such
other page as may replace Telerate Page 500 on such service) or such other
service displaying the offer prices specified in (a) above as may replace Dow
Jones Markets Limited. "Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer, the offer price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) for
settlement on the Remarketing Date, quoted in writing to the Remarketing Dealer
by such Reference Treasury Dealer by 3:30 p.m. on the Determination Date. The
Remarketing Dealer shall have the discretion to select the time at which the
Comparable Treasury Price is determined on the Determination Date.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in The City of New York (which may include the Remarketing Dealer)
selected by the Remarketing Dealer.
(e) If the Remarketing Dealer has elected to remarket the Drs. as provided
in subsections 4(c) and 4(d) then it shall notify the Company, the Trustee and
The Depository Trust Company ("DTC") by telephone, confirmed in writing (which
may include facsimile or other electronic transmission), by 5:00
<PAGE>
-11-
p.m., New York City time, on the Determination Date of the Interest Rate to
Maturity applicable to the Drs. effective from and including the Remarketing
Date; provided that if the Dollar Price is being determined by the Remarketing
Dealer because the Company has elected to exercise its option described in
clause (i) of subsection 4(h), the Dollar Price shall be determined by the
Remarketing Dealer and communicated to the Company by no later than 10:00 a.m.
on the Determination Date.
(f) If the Drs. are remarketed as provided herein then, subject to Section
8 hereof, the Remarketing Dealer will make, or cause the Trustee to make,
payment to DTC by the close of business on the Remarketing Date against delivery
through DTC of the tendered Drs., of the purchase price for all of the tendered
Drs. The purchase price of the tendered Drs. will be equal to 100% of the
principal amount thereof and shall be paid in immediately available funds.
(g) If the Remarketing Dealer (i) does not elect to purchase the Drs. for
remarketing pursuant to subsection 4(c); (ii) shall not have received by the
required time on the Determination Date any firm, committed bids to purchase all
of the Drs. pursuant to subsection 4(d); or (iii) for any reason does not
purchase all of the Drs. on the Remarketing Date, then the Company shall provide
to DTC funds sufficient to repurchase on the Remarketing Date any Drs. that have
not been purchased by the Remarketing Dealer at a price equal to 100% of the
principal amount of such Drs. plus all accrued interest, if any, on such Drs. to
(but excluding) the Remarketing Date.
(h) If the Remarketing Dealer has elected to remarket the Drs. on the
Remarketing Date in accordance with subsection 4(c) hereof, the Company may
irrevocably elect to exercise its right to redeem the Drs., in whole but not in
part, from the Remarketing Dealer on the Remarketing Date at the greater of (x)
100% of the aggregate principal amount of the Drs. and (y) the Dollar Price, by
giving written notice of such election to the Remarketing Dealer no later than
(i) the Business Day immediately prior to the Determination Date or
(ii) if fewer than three Reference Corporate Dealers submit firm,
committed bids in accordance with subsection 4(d) hereof, immediately after
the deadline set by the Remarketing Dealer for receiving such bids has
passed.
<PAGE>
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In either such case, the Company shall pay such redemption price for the
Drs. in same-day funds by wire transfer on the Remarketing Date to an account
designated by the Remarketing Dealer.
If the Company exercises its right to redeem the Drs. pursuant to clause
(ii) above, it shall promptly reimburse the Remarketing Dealer for any and all
expenses (including any and all hedge losses) incurred by the Remarketing Dealer
in connection with its having to break associated hedging transactions to enable
the Company to exercise such redemption right. If any such broken hedges result
in a profit to the Remarketing Dealer, the Remarketing Dealer shall promptly pay
such profit over to the Company. The amount of any hedge losses or profits shall
be determined solely by the Remarketing Dealer, on a reasonable basis.
(i) In accordance with the terms and provisions of the Drs., the tender and
settlement procedures set forth in this Section 4, shall be subject to
modification without the consent of the holders of the Drs., to the extent
required by DTC or, if the book-entry system is no longer available for the Drs.
at the time of the remarketing, to the extent required to facilitate the
tendering and remarketing of Drs. in certificated form. In addition, the
Remarketing Dealer may, without the consent of the holders of the Drs., modify
the settlement procedures set forth in the Indenture and/or the Drs. in order to
facilitate the settlement process.
(j) In accordance with the terms and provisions of the Drs., the Company
hereby (i) agrees that at all times, it will use its best efforts to maintain
the Drs. in book-entry form with DTC or any successor thereto and to appoint a
successor depository to the extent necessary to maintain the Drs. in book-entry
form and (ii) waives any discretionary right it otherwise may have under the
Indenture to cause the Drs. to be issued in certificated form.
SECTION 5. Fees and Expenses. Subject to Section 10 of this Agreement, the
Remarketing Dealer will not receive any fees or reimbursement of expenses from
the Company for its remarketing services set forth herein.
SECTION 6. Resignation of the Remarketing Dealer. The Remarketing Dealer
may resign and be discharged from its duties and obligations hereunder at any
time prior to giving notice of an election to remarket, such resignation to be
effective ten Business Days after delivery of a written notice to
<PAGE>
-13-
the Company and the Trustee of such resignation. The Remarketing Dealer also may
resign and be discharged from its duties and obligations hereunder at any time,
such resignation to be effective immediately, upon termination of this Agreement
in accordance with subsection 10(b) hereof. The Company shall have the right,
but not the obligation, to appoint a successor Remarketing Dealer.
SECTION 7. Dealing in the Drs.; Purchase of Drs. by the Company. (a) JPMSI,
when acting as the Remarketing Dealer or in its individual or any other
capacity, may, to the extent permitted by law, buy, sell, hold and deal in any
of the Drs. JPMSI, as holder or beneficial owner of the Drs., may exercise any
vote or join as a holder or beneficial owner, as the case may be, in any action
which any holder or beneficial owner of Drs. may be entitled to exercise or take
pursuant to the Indenture with like effect as if it did not act in any capacity
hereunder. The Remarketing Dealer, in its capacity either as principal or agent,
may also engage in or have an interest in any financial or other transaction
with the Company as freely as if it did not act in any capacity hereunder.
(b) The Company may purchase Drs. in the remarketing, provided that the
Interest Rate to Maturity established with respect to Drs. in the remarketing is
not different from the Interest Rate to Maturity that would have been
established if the Company had not purchased such Drs.
SECTION 8. Conditions to Remarketing Dealer's Obligations. The obligations
of the Remarketing Dealer to purchase the Drs. on the Remarketing Date in
accordance with the provisions of this Agreement, to determine the Interest Rate
to Maturity pursuant to subsection 4(d), and to remarket the Drs. have been
undertaken in reliance on, and are subject to, the following:
(a) the due performance in all material respects by the Company of its
obligations and agreements as set forth in this Agreement and the accuracy of
the representations and warranties in this Agreement and any certificate
delivered pursuant hereto;
(b) the due performance in all material respects by the Company of its
obligations and agreements set forth in, and the accuracy in all material
respects as of the dates specified therein of the representations and warranties
contained in, the Underwriting Agreement;
<PAGE>
-14-
(c) none of the following events shall have occurred at any time on or
prior to the Remarketing Date:
(i) an Event of Default (as defined in the Indenture), or any event
which, with the giving of notice or passage of time, or both, would
constitute an Event of Default thereunder, with respect to the Drs. shall
have occurred and be continuing;
(ii) an Event of Default (as defined in the ISDA Master Agreement
dated as of February 3, 1998 (the "Master Agreement") between Morgan
Guaranty Trust Company of New York and the Company), shall have occurred
and be continuing under the Master Agreement (if the Master Agreement shall
have terminated, then this provision shall continue to have effect as if
such agreement were still in force and effect); or
(iii) without the prior written consent of the Remarketing Dealer, the
Indenture (including the Drs.) shall have been amended in any manner, or
otherwise contain any provision not contained therein as of the date
hereof, that in either case in the judgment of the Remarketing Dealer
materially changes the nature of the Drs. or the remarketing procedures;
(d) none of the following events shall have occurred after the Remarketing
Dealer elects on the Notification Date to purchase the Drs.:
(i) there shall have occurred on or after the Determination Date any
downgrading, or any notice shall have been given of (A) any downgrading,
(B) any intended or potential downgrading or (C) any review or possible
change that does not indicate the direction of the possible change, in the
rating accorded any debt securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) trading of any securities of or guaranteed by the Company shall
have been suspended on any exchange or in any over-the-counter market;
(iii) a material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, stockholders' equity
or results
<PAGE>
-15-
of operations of the Company and its subsidiaries, taken as a whole, in
each case otherwise than as set forth or contemplated in the Prospectus,
the effect of which is such as to make it, in the judgment of the
Remarketing Dealer, impracticable or inadvisable to remarket the Drs.;
(iv) if a prospectus is required under the Securities Act to be
delivered in connection with the remarketing of the Drs., the Company shall
have failed to furnish to the Remarketing Dealer on the Remarketing Date
the officers' certificate, opinion and comfort letter referred to in
subsection 3(f) of this Agreement and such other documents and opinions as
counsel for the Remarketing Dealer may reasonably require for the purpose
of enabling such counsel to pass upon the sale of Drs. in the remarketing
as herein contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and warranties, or
the fulfillment of any of the conditions, herein contained;
(v) trading generally shall have been suspended or materially limited
on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange or the National Association of Securities Dealers,
Inc.; or a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities;
(vi) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Remarketing Dealer, is material and adverse
and which, in the judgment of the Remarketing Dealer, makes it
impracticable to remarket the Drs. or to enforce contracts for the sale of
the Drs.;
(vii) the Treasury Rate used to determine the Dollar Price on the
Determination Date exceeds the Base Rate; or
(viii) the Remarketing Dealer shall not have received by the required
time on the Determination Date any firm, committed bids to purchase all of
the Drs. in accordance with subsection 4(d) hereof; and
(e) the Remarketing Dealer shall have received (as soon as practicable
following notification by the Remarketing Dealer to the Company on the
Notification Date of its election to purchase the Drs. and in any event prior to
the Determina-
<PAGE>
-16-
tion Date) a certificate of any of the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, or the Controller of the Company, satisfactory to the
Remarketing Dealer, dated as of the Notification Date, to the following effect:
(i) the Company has, prior to the Remarketing Dealer's election on the
Notification Date to remarket the Drs., provided the Remarketing Dealer
with notice of all events as required under subsection 3(a) of this
Agreement;
(ii) the representations and warranties in this Agreement are true and
correct in all material respects at and as of the Notification Date; and
(iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Notification Date; and
(f) the Remarketing Dealer shall have received on the Remarketing Date a
certificate of any of the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, or the Controller of the Company, satisfactory to the Remarketing
Dealer, dated as of the Remarketing Date, to the following effect:
(i) the representations and warranties in this Agreement are true and
correct in all material respects on and as of the Remarketing Date as if
made on and as of the Remarketing Date;
(ii) the Company has complied in all material respects with all
agreements and all conditions on its part to be performed or satisfied at
or prior to the Remarketing Date;
(iii) no material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
business prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, shall have occurred since the date of the most recent financial
statements of the Company filed with the Commission; and
(iv) the conditions specified in clauses (i) through (iii) in
subsection 8(c) and clauses (i) and (ii) in subsection 8(d) of this
Agreement have been satisfied.
<PAGE>
-17-
SECTION 9. Indemnification. (a) The Company agrees to indemnify and hold
harmless the Remarketing Dealer and each person, if any, who controls the
Remarketing Dealer within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, the reasonable legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted):
(i) arising out of the failure to have an effective registration
statement under the Securities Act relating to the Drs., if required, or
the failure to satisfy the prospectus delivery requirements of the
Securities Act because the Company failed to provide the Remarketing Dealer
with a prospectus for delivery;
(ii) caused by any untrue statement or alleged untrue statement of a
material fact contained in any of the Remarketing Materials or caused by
any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities
are caused by any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information
relating to the Remarketing Dealer furnished to the Company in writing by
the Remarketing Dealer expressly for use therein; or
(iii) the acts or omissions of the Remarketing Dealer in connection
with its duties and obligations under subsections 4(c) through 4(e), except
to the extent finally judicially determined to be due primarily to its
gross negligence or willful misconduct.
(b) The Remarketing Dealer agrees to indemnify and hold harmless the
Company, its directors and its officers and each person who controls the Company
within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
the Remarketing Dealer in subsection 9(a)(ii) of this Agreement, but only with
reference to information relating to such Remarketing Dealer furnished to the
Company in writing by such Remarketing Dealer expressly for use in any of the
Remarketing Materials.
<PAGE>
-18-
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless
(i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary,
(ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or
(iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
It is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for the Remarketing
Dealer and its directors and officers shall be designated in writing by it and
any such separate firm for the Company, its directors and its officers who sign
the Registration Statement and such control persons of the Company or authorized
representatives shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment.
<PAGE>
-19-
(d) Notwithstanding the foregoing subsection (c), if at any time an
Indemnified Person shall have requested an Indemnifying Person to reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by such
subsection (c), the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such Indemnifying
Person of the aforesaid request, (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement and (iii) such Indemnified Person shall not have
received notice in writing that such Indemnifying Person is contesting such
request with specificity and in good faith. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
(e) If the indemnification provided for in subsections 9(a) and 9(b) is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to, then each Indemnifying Person, in
lieu of indemnifying such Indemnified Person thereunder, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Remarketing Dealer, on the other hand, from the remarketing of the Drs. or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company, on the one hand, and the Remarketing Dealer, on the other, in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Remarketing Dealer, on the other, shall be deemed to be in the same
respective proportions as the aggregate principal amount of the Drs. bears to
the amount, if any, by which the price at which the Drs. are sold by the
Remarketing Dealer in the remarketing exceeds the price paid by the Remarketing
Dealer for the Drs. tendered on the Remarketing Date. The relative fault of the
Company, on the one hand, and the Remarketing Dealer, on
<PAGE>
-20-
the other, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Remarketing Dealer and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
(f) The Company and the Remarketing Dealer agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
(g) Notwithstanding the provisions of this Section 9, in no event shall the
Remarketing Dealer be required to contribute any amount in excess of the amount
by which the total price at which the Drs. remarketed by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Remarketing Dealer 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 Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 9 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
(h) The indemnity and contribution agreements contained in this Section 9
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement and (ii) any investigation made by or on
behalf of the Remarketing Dealer or any person controlling the Remarketing
Dealer or by or on behalf of the Company, its officers or directors or any other
person controlling the Company.
<PAGE>
-21-
SECTION 10. Termination of Remarketing Agreement. (a) This Agreement shall
terminate as to the Remarketing Dealer on the earliest of
(i) the effective date of the resignation of the Remarketing Dealer
pursuant to Section 6;
(ii) the date of the occurrence of any of the events described in
clauses (i) through (iii) of subsection 4(g);
(iii) the date the Company gives notice of its intention to redeem all
of the outstanding Drs. in accordance with subsection 4(h); or
(iv) the optional redemption of all of the outstanding Drs. by the
Company in accordance with the terms thereof.
(b) In addition, the Remarketing Dealer may terminate all of its
obligations under this Agreement immediately by notifying the Company and the
Trustee of its election to do so, at any time on or before the Remarketing Date,
if:
(i) any of the conditions referred to or set forth in Section 8 hereof
have not been met or satisfied in full or if any of the events set forth in
subsection 8(c) or 8(d) shall have occurred;
(ii) the Remarketing Dealer determines, in its sole discretion, after
consultation with the Company, that there is material, non-public
information about the Company that is not available to the Remarketing
Dealer which is necessary for it to fulfill its obligations under this
Agreement.
(c) If this Agreement is terminated pursuant to this Section 10, such
termination shall be without liability of any party to any other party, except
that, in the case of a termination resulting from a failure to satisfy the
conditions set forth in subsections 8(a) or 8(b) or the occurrence of any of the
events set forth in subsection 8(c) or any of clauses (i) through (iv) of
subsection 8(d), the Company shall reimburse the Remarketing Dealer for all of
its reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Remarketing Dealer. Section 9 and subsections
4(h), 10(c) and 10(d) shall survive such termination and remain in full force
and effect.
<PAGE>
-22-
(d) Upon:
(i) the termination of this Agreement pursuant to subsection 10(b)
(except as a result of an event described in subsection 8(d)(vii));
(ii) a repurchase by the Company of any Drs. due to a failure by the
holder thereof to deliver the Drs. to the Remarketing Dealer against
payment therefor in connection with a mandatory tender; or
(iii) the optional redemption by the Company of Drs. in accordance
with the terms thereof,
then, upon the request of the Remarketing Dealer, the Company shall pay to the
Remarketing Dealer, in same-day funds by wire transfer to an account designated
by the Remarketing Dealer, the Call Price (as defined below). The Call Price
shall be paid as soon as practicable after the Remarketing Dealer has determined
the Call Price and notified the Company of the Call Price, but in any case no
later than the Remarketing Date.
"Call Price" means the fair market value of the embedded interest rate
option implicit in the Remarketing Dealer's right to purchase and remarket,
pursuant to this Agreement, the Drs. not purchased by the Remarketing Dealer.
The Call Price in respect of any Drs. not purchased (because of the redemption
of such Drs. by the Company or otherwise) (such Drs., excluding any Drs.
previously redeemed and in respect of which a Call Price was already derived by
a previous application of this subsection (e), the "Unpurchased Drs.") by the
Remarketing Dealer shall equal:
(i) if the Remarketing Dealer's request for a Call Price payment is
made on or after the Determination Date, an amount (if positive) equal to
(A) the Dollar Price multiplied by a fraction the numerator of which is the
principal amount of the Unpurchased Drs. and the denominator of which is
the aggregate principal amount of the Drs. originally issued less (B) the
principal amount of the Unpurchased Drs.; and
(ii) if the Remarketing Dealer's request for a Call Price payment is
made prior to the Determination Date, the Commercially Reasonable Option
Value (as defined below) on the date of such request.
<PAGE>
-23-
"Commercially Reasonable Option Value" means, on any date, the amount
determined by the Remarketing Dealer on such date under Section 6(e) of the
Master Agreement on a "Market Quotation" basis in respect of the embedded
interest rate option implicit in the Remarketing Dealer's option to purchase, at
100% of the aggregate principal value thereof, the Unpurchased Drs. as if a
"Termination Event" had occurred on such date under such interest rate option
with respect to the Company under the Master Agreement and the Company was the
"Affected Party". The determination of the Commercially Reasonable Option Value
shall be made using the provisions of the Master Agreement regardless of any
termination of the Master Agreement.
The Remarketing Dealer shall promptly notify the Company of the Call Price
by telephone, confirmed in writing (which may include facsimile or other
electronic transmission). The Call Price, absent manifest error, shall be
binding and conclusive upon the parties hereto.
(e) This Agreement shall not be subject to termination by the Company.
SECTION 11. Remarketing Dealer's Performance; Duty of Care. The duties and
obligations of the Remarketing Dealer shall be determined solely by the express
provisions of this Agreement and the Indenture. No implied covenants or
obligations of or against the Remarketing Dealer shall be read into this
Agreement or the Indenture. In the absence of bad faith on the part of the
Remarketing Dealer, the Remarketing Dealer may conclusively rely upon any
document furnished to it, which purports to conform to the requirements of this
Agreement and the Indenture, as to the truth of the statements expressed in any
of such documents. The Remarketing Dealer shall be protected in acting upon any
document or communication reasonably believed by it to have been signed,
presented or made by the proper party or parties. The Remarketing Dealer shall
incur no liability to the Company or to any beneficial owner or holder of Drs.
in its individual capacity or as Remarketing Dealer for any action or failure to
act in connection with the remarketing or otherwise, except as a result of gross
negligence or willful misconduct on its part.
SECTION 12. Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflicts of laws provisions thereof.
<PAGE>
-24-
SECTION 13. Term of Agreement. Unless otherwise terminated in accordance
with the provisions hereof, this Agreement shall remain in full force and effect
from the date hereof until the earlier of the first day thereafter on which no
Drs. are outstanding or the completion of the remarketing of the Drs.
Regardless of any termination of this Agreement pursuant to any of the
provisions hereof, the obligations of each of the parties pursuant to Section 9
and of the Company pursuant to subsections 4(h), 10(c) and 10(d) hereof shall
remain operative and in full force and effect until fully satisfied.
SECTION 14. Successors and Assigns. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other person without
the prior written consent of the Remarketing Dealer. The rights and obligations
of the Remarketing Dealer hereunder may not be assigned or delegated to any
other person (other than an affiliate of the Remarketing Dealer) without the
prior written consent of the Company. This Agreement shall inure to the benefit
of and be binding upon the Company and the Remarketing Dealer and their
respective successors and assigns, and will not confer any benefit upon any
other person, partnership, association or corporation other than persons, if
any, controlling the Remarketing Dealer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act or any other indemnified party
to the extent provided in Section 9 hereof. The terms "successors" and "assigns"
shall not include any purchaser of any Drs. merely because of such purchase.
SECTION 15. Headings. Section headings have been inserted in this Agreement
as a matter of convenience of reference only, and it is agreed that such section
headings are not a part of this Agreement and will not be used in the
interpretation of any provisions of this Agreement.
SECTION 16. Severability. If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any or all jurisdictions because it conflicts
with any provision of any constitution, statute, rule or public policy or for
any other reason, such circumstances shall not have the effect of rendering the
provision in question invalid, inoperative or unenforceable in any other case,
circumstance or jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
<PAGE>
-25-
SECTION 17. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
SECTION 18. Amendments; Waivers. This Agreement may be amended or portions
thereof may be waived by any instrument in writing signed by each of the parties
hereto so long as this Agreement as amended or the provisions as so waived are
not inconsistent with the Indenture in effect as of the date of any such
amendment or waiver.
SECTION 19. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing (which may include facsimile or other electronic
transmission) and shall be deemed to have been validly given or made when
delivered or, if earlier, three days after it was mailed, registered or
certified mail, return receipt requested and postage prepaid, addressed as
follows:
(a) to the Company:
TriNet Corporate Realty Trust, Inc.
Four Embarcadero Center, Suite 3150
San Francisco, CA 94111
Attention: A. William Stein, Executive Vice President
and Chief Financial Officer
Geoff Dugan, Vice President and
General Counsel
Facsimile No.: 415-391-6259
(b) to JPMSI:
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Attention: Syndicate Department
Facsimile No.: (212) 648-5909
or to such other address as the Company or the Remarketing Dealer shall specify
in writing.
<PAGE>
IN WITNESS WHEREOF, each of the Company and the Remarketing Dealer has
caused this Remarketing Agreement to be executed in its name and on its behalf
by one of its duly authorized officers as of the date first above written.
TRINET CORPORATE REALTY
TRUST, INC.
By /s/ Elisa F. Di Tommaso
-----------------------------------
Name: Elisa F. Di Tommaso
Title: Vice President and Treasurer
J.P. MORGAN SECURITIES INC.
By /s/ Patricia P. Lunka
-----------------------------------
Name: Patricia P. Lunka
Title: Vice President
- --------------------------------------------------------------------------------
TRINET CORPORATE REALTY TRUST, INC.
TO
HARRIS TRUST AND SAVINGS BANK
Trustee
---------------------
Indenture
Dated as of February 27, 1998
Senior Debt Securities
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY........................................................1
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..........1
SECTION 101. Definitions.................................................1
SECTION 102. Compliance Certificates and Opinions.......................12
SECTION 103. Form of Documents Delivered to Trustee.....................12
SECTION 104. Acts of Holders............................................13
SECTION 105. Notices, etc., to Trustee and Company......................15
SECTION 106. Notice to Holders; Waiver..................................15
SECTION 107. Counterparts; Effect of Headings and Table of Contents.....17
SECTION 108. Successors and Assigns.....................................17
SECTION 109. Severability Clause........................................17
SECTION 110. Benefits of Indenture......................................17
SECTION 111. Governing Law..............................................17
SECTION 112. Legal Holidays.............................................17
SECTION 113. Immunity of Stockholders, Directors, Officers
and Agents of the Company................................18
SECTION 114. Conflict with Trust Indenture Act..........................18
ARTICLE TWO - SECURITIES FORMS................................................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.......................................27
SECTION 305. Registration, Registration of Transfer and Exchange........29
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...........33
SECTION 307. Payment of Interest; Interest Rights Preserved.............34
SECTION 308. Persons Deemed Owners......................................37
SECTION 309. Cancellation...............................................38
SECTION 310. Computation of Interest....................................38
ARTICLE FOUR - SATISFACTION AND DISCHARGE.....................................38
SECTION 401. Satisfaction and Discharge of Indenture....................38
-i-
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Page
SECTION 402. Application of Trust Funds.................................40
SECTION 403. Reinstatement..............................................40
ARTICLE FIVE - REMEDIES.......................................................41
SECTION 501. Events of Default..........................................41
SECTION 502. Acceleration of Maturity; Rescission and Annulment.........42
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee...............................................44
SECTION 504. Trustee May File Proofs of Claim...........................44
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons....................................45
SECTION 506. Application of Money Collected.............................46
SECTION 507. Limitation on Suits........................................46
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, if any, and Interest.......47
SECTION 509. Restoration of Rights and Remedies.........................47
SECTION 510. Rights and Remedies Cumulative.............................47
SECTION 511. Delay or Omission Not Waiver...............................48
SECTION 512. Control by Holders of Securities...........................48
SECTION 513. Waiver of Past Defaults....................................48
SECTION 514. Waiver of Usury, Stay or Extension Laws....................49
SECTION 515. Undertaking for Costs......................................49
ARTICLE SIX - THE TRUSTEE.....................................................49
SECTION 601. Notice of Defaults.........................................49
SECTION 602. Certain Rights of Trustee..................................50
SECTION 603. Not Responsible for Recitals or Issuance of Securities.....52
SECTION 604. May Hold Securities........................................52
SECTION 605. Money Held in Trust........................................52
SECTION 606. Compensation and Reimbursement.............................52
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests....................................53
SECTION 608. Resignation and Removal; Appointment of Successor..........54
SECTION 609. Acceptance of Appointment by Successor.....................55
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business..............................................56
SECTION 611. Appointment of Authenticating Agent........................57
SECTION 612. Certain Duties and Responsibilities of the Trustee.........58
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.............60
SECTION 701. Disclosure of Names and Addresses of Holders...............60
SECTION 702. Reports by Trustee.........................................60
SECTION 703. Reports by Company.........................................60
SECTION 704. Company to Furnish Trustee Names and Addresses
of Holders...............................................61
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE..............61
-ii-
<PAGE>
Page
SECTION 801. Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject
to Certain Conditions....................................61
SECTION 802. Rights and Duties of Successor Corporation.................62
SECTION 803. Officers' Certificate and Opinion of Counsel...............62
ARTICLE NINE - SUPPLEMENTAL INDENTURES........................................63
SECTION 901. Supplemental Indentures Without Consent of Holders.........63
SECTION 902. Supplemental Indentures with Consent of Holders............64
SECTION 903. Execution of Supplemental Indentures.......................66
SECTION 904. Effect of Supplemental Indentures..........................66
SECTION 905. Conformity with Trust Indenture Act........................66
SECTION 906. Reference in Securities to Supplemental Indentures.........66
ARTICLE TEN - COVENANTS.......................................................66
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount,
if any; and Interest....................................66
SECTION 1002. Maintenance of Office or Agency...........................67
SECTION 1003. Money for Securities Payments to Be Held in Trust.........68
SECTION 1004. Existence.................................................70
SECTION 1005. Maintenance of Properties.................................70
SECTION 1006. Insurance.................................................70
SECTION 1007. Payment of Taxes and Other Claims.........................70
SECTION 1008. Statement as to Compliance................................71
SECTION 1009. Waiver of Certain Covenants...............................71
ARTICLE ELEVEN - REDEMPTION OF SECURITIES.....................................71
SECTION 1101. Applicability of Article..................................71
SECTION 1102. Election to Redeem; Notice to Trustee.....................71
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.........72
SECTION 1104. Notice of Redemption......................................72
SECTION 1105. Deposit of Redemption Price...............................74
SECTION 1106. Securities Payable on Redemption Date.....................74
SECTION 1107. Securities Redeemed in Part...............................75
ARTICLE TWELVE - SINKING FUNDS................................................75
SECTION 1201. Applicability of Article..................................75
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.....76
SECTION 1203. Redemption of Securities for Sinking Fund.................76
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS.........................77
SECTION 1301. Applicability of Article..................................77
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SECTION 1302. Repayment of Securities...................................77
SECTION 1303. Exercise of Option........................................77
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable.........................................78
SECTION 1305. Securities Repaid in Part.................................79
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE.........................79
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance................79
SECTION 1402. Defeasance and Discharge..................................80
SECTION 1403. Covenant Defeasance.......................................80
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
SECTION 1502. Call, Notice and Place of Meetings........................84
SECTION 1503. Persons Entitled to Vote at Meetings......................84
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
SIGNATURES....................................................................88
EXHIBIT A - FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR SECURITY.............A-1
EXHIBIT B - FORMS OF CERTIFICATION...........................................B-1
-iv-
<PAGE>
TRINET CORPORATE REALTY TRUST, INC.
Reconciliation and tie between Trust Indenture Act of 1939 (the "Trust
Indenture Act" or "TIA") and Indenture, dated as of February 27, 1998.
Trust Indenture
Act Section Indenture 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)..................................... 1009
(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)(1)..................................... 503
(a)(2)..................................... 504
ss. 318 (a)........................................ 111
(c)........................................ 111
- ---------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Attention should also be directed to TIA Section 318(c), which provides
that the provisions of TIA Sections 310 to and including 317 of the Trust
Indenture Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
-v-
<PAGE>
INDENTURE, dated as of February 27, 1998, between TRINET CORPORATE REALTY
TRUST, INC., a corporation organized under the laws of the State of Maryland
(hereinafter called the "Company"), having its principal office at Four
Embarcadero Center, Suite 3150, San Francisco, California 94111, and HARRIS
TRUST AND SAVINGS BANK, a banking corporation organized under the laws of the
State of Illinois as Trustee hereunder (hereinafter called the "Trustee"),
having a Corporate Trust Office at 311 West Monroe Street, Chicago, Illinois
60606.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes senior debt securities (hereinafter called the "Securities") evidencing
its unsecured and 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, to be issued in one or more Series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act" or "TIA"), that are deemed to be
incorporated into this Indenture and shall, to the extent applicable, be
governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, 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,
<PAGE>
-2-
shall have the meanings assigned to them in the rules of the Commission
adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof "and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the 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.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 611 hereof to act on behalf of the Trustee to authenticate
Securities.
"Authorized Newspaper" means a newspaper, printed in the English language
or in an official language of the country of publication, customarily published
on each Business Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in each place in connection with which the
term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"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 any
committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors
<PAGE>
-3-
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 issued pursuant to
Section 301, any day, other than a Saturday or Sunday, that is not 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" of any Person means any and all shares, interests,
participations, rights to purchase, warrants, options or other equivalents
(however designated) of corporate stock or other equity of such Person.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Common Stock" means, with respect to any Person, all shares of capital
stock issued by such Person other than Preferred Stock.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by its Chairman of the Board, the
President or a Vice President, and by its Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee.
"Consolidated Net Assets" means as of any particular time the aggregate
amount of assets (less applicable reserves and other properly deductible items)
after deducting therefrom all current liabilities except for (a) notes and loans
payable, (b) current maturities of long-term debt and (c) current maturities of
obligations under capital leases, all as set forth on the most recent
consolidated balance sheet of the Company and its consolidated Subsidi-
<PAGE>
-4-
aries and computed in accordance with generally accepted accounting principles
and practices as in effect on February 27, 1998.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at 311 West Monroe Street, Chicago,
Illinois 60606.
"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.
"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.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
<PAGE>
-5-
"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, except as otherwise provided herein, generally accepted
accounting principles, as in effect from time to time, as used in the United
States applied on a consistent basis.
"Global Security" means a Security evidencing all or a part of a series of
Securities issued to and registered in the name of the depository for such
series, or its nominee, in accordance with Section 305, and bearing the legend
prescribed in Section 203.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the Foreign
Currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Guaranty" by any Person means any Obligation, contingent or otherwise, of
such Person guaranteeing any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including, without
limitation, every Obligation of such Person (i) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Indebtedness or to purchase
(or to advance or supply funds for the purchase of) any security for the payment
of such Indebtedness, (ii) to purchase property, securities or services for the
purpose of assuring the holder of such Indebtedness of the payment of such
Indebtedness or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that a
Guaranty by any Person shall not include endorsements by such Person for
collection or deposit, in either case in the ordinary
<PAGE>
-6-
course of business. The terms "Guaranteed," "Guaranteeing" and "Guarantor" shall
have meanings correlative to the foregoing.
"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" means, with respect to any Person, without duplication, (i)
any Obligation of such Person relating to any indebtedness of such Person (A)
for borrowed money (whether or not the recourse of the lender is to the whole of
the assets, of such person or only to a portion thereof), (B) evidenced by
notes, debentures or similar instruments (including purchase money obligations)
given in connection with the acquisition of any property or assets (other than
trade accounts payable for inventory or similar property acquired in the
ordinary course of business), including securities, for the payment of which
such Person is liable, directly or indirectly, or the payment of which is
secured by a lien, charge or encumbrance on property or assets of such Person,
(C) for goods, materials or services purchased in the ordinary course of
business (other than trade accounts payable arising in the ordinary course of
business), (D) with respect to letters of credit or bankers acceptances issued
for the account of such Person or performance, surety or similar bonds, (E) for
the payment of money relating to a Capitalized Lease Obligation or (F) under
interest rate swaps, caps or similar agreements and foreign exchange contracts,
currency swaps or similar agreements; (ii) any liability of others of the kind
described in the preceding clause (i), which such Person has Guaranteed or which
is otherwise its legal liability; and (iii) any and all deferrals, renewals,
extensions and refunding of, or amendments, modifications or supplements to, any
liability of the kind described in any of the preceding clauses (i) or (ii).
"Indenture" means this instrument as originally executed or as it may be
supplemented or amended from time to time 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 be supplemented or amended from
time to time by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one
<PAGE>
-7-
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.
"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," when used with respect to any Security, means the
amount, if any, in addition to principal which is required by a Security, under
the terms and conditions specified therein or as otherwise specified as
contemplated by Section 301, to be paid by the Company to the Holder thereof in
connection with any optional redemption or accelerated payment of such Security.
"Maturity," 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.
"Obligation" of any Person with respect to any specified Indebtedness means
any obligation of such Person to pay principal, premium, interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to such Person, whether or not a claim for such
post-petition interest is allowed in such Proceeding), penalties, reimbursement
or indemnification amounts, fees, expenses or other amounts relating to 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 of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company or who may be an employee of or other counsel for the Company
and who shall be satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
<PAGE>
-8-
"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
(including 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,
however, 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, 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
<PAGE>
-9-
amount determined as provided in clause (i) above) of such Security, (iii) the
principal amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed outstanding for such
purpose shall be equal to the principal face amount of such Indexed Security at
original issuance, unless otherwise provided with respect to such Security
pursuant to Section 301, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such calculation or
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities owned as provided in clause (iv) above 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. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice.
"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, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of or within
any series, means the place or places where the principal of (and premium or
Make-Whole Amount, if any) and interest on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Preferred Stock" means, with respect to any Person, all capital stock
issued by such Person that are entitled to a preference or priority over any
other capital stock issued
<PAGE>
-10-
by such Person with respect to any distribution of such Person's assets, whether
by dividend or upon any voluntary or involuntary liquidation, dissolution or
winding up.
"Redemption Date," when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" shall mean any Security which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of or within any series means the date specified
for that purpose as contemplated by Section 301, whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security to be repaid
at the option of the Holder, the date fixed for such repayment by or pursuant to
this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such officer's knowledge and familiarity with the
particular subject.
"Security" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated and
delivered under this Indenture; provided, however, that, if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
<PAGE>
-11-
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act of 1933) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Company
pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation a majority of the outstanding voting stock
of which is owned, directly or indirectly, by the Company or by one or more
other Subsidiaries of the Company. For the purposes of this definition, "voting
stock" means stock having voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder; provided, however, that if
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean only the Trustee with respect to
Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws
<PAGE>
-12-
of the United States or an estate or trust the income of which is subject to
United States Federal income taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (including certificates delivered
pursuant to Section 1008) 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 or not, 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
<PAGE>
-13-
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders. (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 received by 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.
<PAGE>
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(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.
(c) The ownership of Registered Securities shall be proved by the Security
Register. As to any matter relating to beneficial ownership interests in any
Global Security, the appropriate depository's records shall be dispositive for
purposes of this Indenture.
(d) The ownership of Bearer Securities may be proved by the production of
such Bearer Securities or by a certificate executed, as depository, by any trust
company, bank, banker or other depository, 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 depository, 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
<PAGE>
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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.
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 311 West Monroe Street, Chicago, Illinois 60606
Attn: Indenture Trust Division; or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company, Attention: Chief
Financial Officer (with a copy to the Company's General Counsel), or
(3) either the Trustee or the Company, by the other party, shall be
sufficient for every purpose hereunder if given by facsimile transmission,
receipt confirmed by telephone followed by an original copy delivered by
guaranteed overnight courier; if to the Trustee at facsimile number (312)
461-3525; and if to the Company at facsimile number (415) 391-6259.
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, if any, and not
<PAGE>
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earlier than the earliest date, if any, 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 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, if any,
and not earlier than the earliest date, if any, 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.
<PAGE>
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SECTION 107. Counterparts; Effect of Headings and Table of Contents. 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. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 109. Severability Clause. In case any provision in this Indenture
or in any Security or coupon shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby. SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons, express or implied,
shall give to any Person, other than the parties hereto, any Security Registrar,
any Paying Agent, any Authenticating Agent and their successors hereunder and
the Holders any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 111. Governing Law. This Indenture and the Securities and coupons
shall be governed by and construed in accordance with the law of the State of
New York. This Indenture is subject to the provisions of the TIA that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity of any Security or the last date on which a Holder has the right to
exchange a 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
principal (and premium or Make-Whole Amount, if any) or exchange of such
security need not be made at such Place of Payment on such date, but (except as
otherwise provided in the supplemental indenture with respect to such Security)
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, or on such last day for exchange, provided that no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
<PAGE>
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SECTION 113. Immunity of Stockholders, Directors, Officers and Agents of
the Company. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness
evidenced thereby, shall be had against any past, present or future stockholder,
employee, officer or director, as such, of the Company or of any successor,
either directly or through the Company or any successor, 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
and as part of the consideration for the issue of the Securities.
SECTION 114. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
or deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
ARTICLE TWO - SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be substantially in the form of Exhibit A hereto or in such other
form as shall be established in one or more indentures supplemental hereto or
approved from time to time by or pursuant to a Board Resolution in accordance
with Section 301, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or mechanically reproduced on safety paper or
may be produced in any other man-
<PAGE>
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ner, 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.
Harris Trust and Savings Bank,
as Trustee
Dated: ______________ By:________________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or within
a series are issuable in the form of one or more Global Securities, then,
notwithstanding clause (8) of Section 301 and the provisions of Section 302, any
such Global Security or Securities may provide that it or they shall represent
the aggregate amount of all Outstanding Securities of such series (or such
lesser amount as is permitted by the terms thereof) from time to time endorsed
thereon and may also provide 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 any Global Security to
reflect the amount, or any increase or decrease in the amount, or changes in the
rights of Holders thereof, of Outstanding Securities represented thereby shall
be made by the Trustee in such manner or 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 Global
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Global Security 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 Global Security if such Security was never issued and
sold by the Company and the Company delivers to the Trustee the Global Security
together with written instructions (which need not comply with Section 102 and
need not be accompanied by an Opinion of
<PAGE>
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Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of and any premium or
Make-Whole Amount, if any, and interest on any Global Security in permanent
global form shall be made to the registered Holder thereof.
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.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning set forth in the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Security is exchangeable for
Securities registered in the name of a person other than the Depository or
its nominee only in the limited circumstances described in the Indenture,
and may not be transferred except as a whole by the Depository to a nominee
of the Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or its nominee to a
successor Depository or its nominee."
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 in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:
<PAGE>
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(1) The title of the Securities of the series (which shall distinguish
the Securities of such series from all other series of Securities);
(2) Any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) The price (expressed as a percentage of the principal amount
thereof) at which such Securities will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity thereof;
(4) The date or dates, or the method for determining such date or
dates, on which the principal of such Securities will be payable;
(5) The rate or rates (which may be fixed or variable), or the method
by which such rate or rates shall be determined, at which such Securities
will bear interest, if any;
(6) The date or dates, or the method for determining such date or
dates, from which any such interest will accrue, the dates on which any
such interest will be payable, the record dates for such interest payment
dates, or the method by which such dates shall be determined, the persons
to whom such interest shall be payable, and the basis upon which interest
shall be calculated if other than that of a 360-day year of twelve 30-day
months;
(7) The place or places where the principal of (and premium or
Make-Whole Amount, if any) and interest, if any, on such Securities will be
payable, where such Securities may be surrendered for registration of
transfer or exchange and where notices or demands to or upon the Company in
respect of such Securities and this Indenture may be served;
(8) The period or periods, if any, within which, the price or prices
at which and the other terms and conditions upon which such Securities may,
pursuant to any optional or mandatory redemption provisions, be redeemed,
as a whole or in part, at the option of the Company;
(9) The obligation, if any, of the Company to redeem, repay or
purchase such Securities pursuant to any sinking fund or analogous
provision or at the option
<PAGE>
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of a holder thereof, and the period or periods within which, the price or
prices at which and the other terms and conditions upon which such
Securities will be redeemed, repaid or purchased, as a whole or in part,
pursuant to such obligation;
(10) If other than Dollars, the currency or currencies in which such
Securities are denominated and payable, which may be a foreign currency or
units of two or more foreign currencies or a composite currency or
currencies, the manner of determining the equivalent thereof in Dollars for
purposes of the definition of "Outstanding" in Section 101, and the terms
and conditions relating thereto;
(11) Whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any, including any amount due upon redemption, if
any) or interest, if any, on such Securities may be determined with
reference to an index, formula or other method (which index, formula or
method may, but need not be, based on the yield on or trading price of
other securities, including United States Treasury securities or on a
currency, currencies, currency unit or units, or composite currency or
currencies) and the manner in which such amounts shall be determined;
(12) Whether the principal of (and premium or Make-Whole Amount, if
any) or interest 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;
(13) Provisions, if any, granting special rights to the holders of
Securities of the series upon the occurrence of such events as may be
specified;
(14) 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;
(15) Whether and under what circumstances the Company will pay any
additional amounts on such Securities in respect of any tax, assessment or
govern-
<PAGE>
-23-
mental charge and, if so, whether the Company will have the option to
redeem such Securities in lieu of making such payment;
(16) Whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities
and the terms upon which Bearer Securities of the series may be exchanged
for Registered Securities of the series and vice versa (if permitted by
applicable laws and regulations), whether any Securities of the series are
to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form with
or without coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in the Indenture, and, if
Registered Securities of the series are to be issuable as a Global
Security, the identity of the depository 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 herein;
(19) The applicability, if any, of the defeasance and covenant
defeasance provisions of Article Fourteen hereof to the Securities of the
series;
(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; and
<PAGE>
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(21) Any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the Securities
of such series.
SECTION 302. Denominations. The Securities of each series shall be issuable
in such denominations as shall be specified as contemplated by Section 301. With
respect to Securities of any series denominated in Dollars, in the absence of
any such provisions with respect to the Securities of any series, the Securities
of such series, other than Global Securities (which may be of any denomination),
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating. The Securities
and any coupons appertaining thereto shall be executed on behalf of the Company
by its Chairman of the Board, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon, and attested by its Secretary or one of
its Assistant Secretaries. The signature of any 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 Com-
<PAGE>
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pany Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that, in connection with its original issuance,
no Bearer Security shall be mailed or otherwise delivered to any location in the
United States; and provided further that, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, a Bearer Security
may be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished a certificate to
Euroclear or CEDEL, as the case may be, in the form set forth in Exhibit B-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 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
<PAGE>
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this Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel,
will constitute legal, valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent transfer, 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
(including a Global 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
<PAGE>
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need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities
may be in global form.
Except in the case of temporary Global Securities (which shall be exchanged
as otherwise provided herein 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, the
following provisions of this Section 304(b) shall govern the exchange of
temporary Securities 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 depository or common depository (the "Common
Depository"), for the benefit of Euroclear and CEDEL, for credit
<PAGE>
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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 Depository 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,
however, that, unless otherwise specified in such temporary Global Security,
upon such presentation by the Common Depository, 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 B-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
<PAGE>
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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 B-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 B-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary Global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary Global Security will be
made unless and until such interest in such temporary Global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency of the Company in a Place of Payment a register for each
series of Securities (the registers maintained in such office or in any such
office or agency of the Company in a Place of Payment being herein sometimes
referred to collectively as the "Security Regis-
<PAGE>
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ter") 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, 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
<PAGE>
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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 depository for any permanent Global
Security is The Depository Trust Company ("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 depository for the
applicable Global Security or Securities or if at any time DTC ceases to be a
clearing agency registered under the Securities Exchange Act of 1934 if so
required by applicable law or regulation, the Company shall appoint a successor
depository with respect to such Global Security or Securities. If (x) a
successor depository for such Global Security or Securities is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such unwillingness, inability or ineligibility, (y) an Event of Default
has occurred and is continuing and the beneficial owners representing a majority
in principal amount of the applicable series of Securities represented by such
Global Security or Securities advise DTC to cease acting as depository for such
Global Security or Securities or (z) the Company, in its sole discretion,
determines at any time that all Outstanding Securities
<PAGE>
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(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 depository 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
<PAGE>
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duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may be
among those selected for redemption during a period beginning at the opening of
business 15 days before selection of the Securities to be redeemed under Section
1103 and ending at the close of business on (A) if such Securities are issuable
only as Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Company, together with, in proper cases, such
security or indemnity as may be required by the Company or the Trustee to save
each of them or any agent of either of them harmless, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and principal amount, containing identical terms and
provisions and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Se-
<PAGE>
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curity or coupon has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a number
not contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium or
Make-Whole Amount, if any), and any interest on, 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
<PAGE>
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Section 301, interest on any Registered Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company maintained for such
purpose pursuant to Section 1002; provided, however, that each installment of
interest on any Registered Security may at the Company's option be paid by (i)
mailing a check for such interest, payable to or upon the written order of the
Person entitled thereto pursuant to Section 308, to the address of such Person
as it appears on the Security Register or (ii) transfer to an account maintained
by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case may be,
with respect to that portion of such permanent global Security held for its
account by Cede & Co. or the Common Depository, 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:
<PAGE>
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(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall deposit
with the Trustee an amount of money in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered Securities of
such series at his address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in an Authorized Newspaper in each
Place of Payment, but such publications shall not be a condition precedent
to the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after the
close of business at such office or agency on any Special Record Date and
before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall
be surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security is-
<PAGE>
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sued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium or Make-Whole Amount, if any),
and (subject to Sections 305 and 307) interest on, such Registered Security and
for all other purposes whatsoever, whether or not such Registered Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary. All such payments so
made to any such Person, or upon such Person's order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for money payable upon any such Security.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the Holder of any Bearer Security and the Holder of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
No Holder of any beneficial interest in any Global Security held on its
behalf by a depository shall have any rights under this Indenture with respect
to such Global Security and such depository shall be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever. 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
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account of beneficial ownership interests of a Global Security 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 depository, as a Holder, with respect to such
Global Security or impair, as between such depository and owners of beneficial
interests in such Global Security, the operation of customary practices
governing the exercise of the rights of such depository (or its nominee) as
Holder of such Global Security.
SECTION 309. Cancellation. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. Cancelled Securities and coupons held by
the Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company, unless the Trustee is otherwise
directed by a Company Order.
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
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or exchange of Securities of such series herein expressly provided for), and the
Trustee, upon receipt of a Company Order, and at the expense of the Company,
shall execute instruments in form and substance satisfactory to the Trustee and
the Company acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount in the currency or
currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and such
coupons not theretofore delivered to the Trustee for can-
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cellation, for principal (and premium or Make-Whole Amount, if any)
and interest 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
for whose payment such money has been deposited with or received by the Trustee,
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 403. Reinstatement. If the Trustee of the Paying Agent is unable to
apply any money in accordance with this Article Four by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Four until such time as the
Trustee or Paying Agent is permitted to apply all money held in trust with
respect to the Securities; provided, however, that if the Company makes any
payment of principal of or any premium or interest on any Securities following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of the Securities to receive such payment from the money
so held in trust.
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ARTICLE FIVE - REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever used herein
with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest on any Security of that
series or of any coupon appertaining thereto, when such interest 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; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture with respect to any Security of that
series (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(5) default under any bond, debenture, note, 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 (or by any
Subsidiary, the repayment of which the Company has guaranteed or for which
the Company is directly responsible or liable as obligor or guarantor),
having an aggregate principal amount outstanding of at least $25,000,000,
whether such indebtedness now exists or shall hereafter be created, which
default shall have resulted in such indebtedness becoming or being declared
due and payable prior to the date on which it would otherwise have become
due and payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 10 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
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at least 10% in principal amount of the Outstanding Securities of that
series a written notice specifying such default and requiring the Company
to cause such indebtedness to be discharged or cause such acceleration to
be rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(6) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of either of its property,
or
(C) orders the liquidation of the Company or any Significant
Subsidiary, and the order or decree remains unstayed and in effect for
90 days; or
(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 and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal
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amount (or, if Securities of that Series are Original Issue Discount Securities
or Indexed Securities, such portion of the principal as may be specified in the
terms thereof) of all the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by the Holders), and upon any such declaration such principal or specified
portion thereof shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration of acceleration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on 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 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.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of interest on
any Security of any series and any related coupon when such interest
becomes due and payable and such default continues for a period of 30 days,
or
(2) default is made in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium or Make-Whole Amount, if any) and interest, 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 at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Securities
of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities of any series shall then
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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 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 and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities, and it shall not be necessary to make any Holders of the
Securities parties to any such proceedings.
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
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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, 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, 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) and
interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of any series
or any related coupon shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
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(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding 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, and Interest. 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 such Security or payment of such coupon on the respective due dates
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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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
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(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, it being understood however, that subject
to Section 602, the Trustee shall have no duty or obligation to determine
whether or not such actions or forebearances shall be unduly prejudicial to
such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by Holders.
SECTION 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on any Security of such series or any related
coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit 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 of any series, 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).
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 any Security of such series, or in the payment of any
sinking fund installment with respect to the Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as
Responsible Officers of the
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Trustee in good faith determine that the withholding of such notice is in the
interests of the Holders of the Securities and coupons of such series; and
provided further that in the case of any default or breach of the character
specified in Section 501(4) with respect to the Securities and coupons of such
series, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of TIA
Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining 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;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) before the Trustee acts or refrains from acting, it may consult
with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders 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;
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(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, unless requested
in writing so to do by the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of any series; provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such examination shall be paid by the Holders or, if paid by the Trustee,
shall be repaid by the Holders upon demand. 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, relevant to the facts or matters that
are the subject of its inquiry, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture.
(9) the Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder;
(10) the permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty;
(11) except for (i) a default under Section 501(1) or (2) hereof, or
(ii) any other event of which the Trustee has "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall not
be deemed to have notice of any default or Event of Default unless
specifically notified in writing of such event by the Company or the
Holders of not less than 25% in aggregate principal amount of the
Securities then outstanding; as used herein, the term "actual knowledge"
means the actual
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fact or statement of knowing, without any duty to make any investigation
with regard thereto,
(a) The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent, Security
Registrar, Authenticating Agent or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with
the Company with the same rights it would have if it were not Trustee, Paying
Agent, Security Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
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(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture including costs
incurred in connection with collection (including the reasonable
compensation and the reasonable expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its 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 or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(7) or Section 501(8), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium or Make-Whole Amount, if
any) or interest on particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of
Federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. Neither the Company nor any
Person directly or indirectly controlling, controlled by, or under common
control with the Company shall serve as Trustee.
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SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and shall
fail to resign after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it
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being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular
series). If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the manner
provided for notices to the Holders of Securities in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
pursuant to Article Nine hereof, wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions
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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 609, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities or coupons shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities or coupons so authenticated with
the same effect as if such successor Trustee had itself
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authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when any of
the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Company.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and 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 to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred to
in the within- mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
as Trustee
Dated: ______________ By:____________________________________
Authorized Signatory
Dated: ______________ By:____________________________________
Authorized Signatory
SECTION 612. Certain Duties and Responsibilities of the Trustee.
(a) With respect to the Securities of any series, except during the
continuance of an Event of Default with respect to the Securities of such
series:
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(1) the Trustee undertakes to perform such duties and 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; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture, but shall not be under any
duty to verify the contents or accuracy thereof.
(b) In case an Event of Default with respect to the Securities of any
series has occurred and is continuing, the Trustee shall, with respect to
Securities of such series, exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) 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
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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.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
612.
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. The Trustee shall transmit to Holders such
reports concerning the Trustee and its actions under this Indenture as may be
required by TIA Section 313. A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each stock exchange,
if any, upon which any Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when any Securities are listed on
any stock exchange.
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
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then
it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a secu-
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rity listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses of Holders. The
Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than 15 days after the Regular Record Date
for interest for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders
of Registered Securities of such series as of such Regular Record Date, or
if there is no Regular Record Date for interest for such series of
Securities, semiannually, upon such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished, provided, however, that, so long as the
Trustee is the Security Registrar, no such list shall be required to be
furnished.
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions. The Company may consolidate
with, or sell, lease or convey all or substantially all of its assets to, or
merge with or into any other corporation, provided that in any such case, (1)
either the Company shall be the continuing corporation, or the successor
corporation shall be a corporation organized and
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existing under the laws of the United States or a State thereof and such
successor corporation shall expressly assume the due and punctual payment of the
principal of (and premium or Make-Whole Amount, if any) and any interest on all
of the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company by supplemental indenture, complying
with Article Nine hereof, satisfactory to the Trustee, executed and delivered to
the Trustee by such corporation and (2) immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation of the
Company or any Subsidiary as a result thereof as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or the lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing.
SECTION 802. Rights and Duties of Successor Corporation. In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Company, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor corporation,
complies with the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
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ARTICLE NINE - SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders of Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or those series
of Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or
premium or Make-Whole Amount, if any, 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
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(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 supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by or pursuant to a Board Resolution, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
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(1) change the Stated Maturity of the principal of (or premium or
Make-Whole Amount, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount thereof or the
rate or amount of interest thereon, or any premium or Make-Whole Amount
payable upon the redemption thereof, or reduce the amount of the principal
of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of the Holder of any
Security, or change any Place of Payment where, or the currency or
currencies, currency unit or units or composite currency or currencies in
which, any Security or any premium or 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 1009, 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, provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section 902 and
Section 1009, or the deletion of this proviso, in accordance with the
requirements of Sections 609(b) and 901(11).
It shall not be necessary for any Act of Holders under this Section 902 to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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SECTION 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures. Securities
of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN - COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, if any;
and Interest. 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 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 Bearer Securities on or before Maturity 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
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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, 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, 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 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; provided, however, that if the Securities
of that series are listed on any 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 any required city located
outside the United States, as the case may be, so long as the Securities of that
series are listed on such exchange; and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment at
the offices specified in the Security, in London, England, and the Company
hereby appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands, and the Company hereby appoints the Trustee its
agent to receive all such presentations, surrenders, notices and demands.
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Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or Make-Whole Amount or interest
on 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 or Make-Whole Amount and interest on any
Bearer Security 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, or interest,
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.
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-
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Whole Amount, if any), or interest on 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 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 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 so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
Make-Whole Amount, if any, or interest and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of (and
premium or Make-Whole Amount, if any) or interest on Securities in trust
for the benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any such payment of
principal (and premium or Make-Whole Amount, if any) or interest on the
Securities of that series; 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 any Security of any series and remaining unclaimed for two
years after such principal (and premium or Make-Whole Amount, if any) or
interest 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 any Security, without interest
thereon, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Existence. Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, all material rights (by articles of
incorporation, by-laws and statute) and material franchises; provided, however,
that the Company shall not be required to preserve any such 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.
SECTION 1005. 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 selling or otherwise disposing of their properties
for value in the ordinary course of business.
SECTION 1006. Insurance. The Company will cause each of its and its
Subsidiaries' insurable properties to be insured against loss or damage in an
amount at least equal to their then full insurable value with insurers of
recognized responsibility.
SECTION 1007. 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 Subsidi-
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ary 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 1008. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture and, in the event of any
noncompliance, specifying such noncompliance and the nature and status thereof.
For purposes of this Section 1008, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION 1009. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 1004 to 1009, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE ELEVEN - REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all of the Securities of any series, the Company shall, at least 45 days
prior to the giving of the notice of redemption in Section 1104 (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee 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 re-
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striction 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.
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,
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(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by
all coupons maturing subsequent to the date fixed for redemption or the
amount of any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company,
the Trustee for such series and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made, and
(10) the CUSIP number of such Security, if any.
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Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, which it may not do in the case
of a sinking fund payment under Article Twelve, segregate and hold in trust as
provided in Section 1003) an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay on the
Redemption Date the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest) such Securities shall, if the same
were interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and provided further that installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such miss-
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ing 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.
SECTION 1107. Securities Redeemed in Part. Any Registered Security which is
to be redeemed only in part (pursuant to the provisions of this Article or of
Article Twelve) shall be surrendered at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing) and
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered. If a Global Security is so
surrendered, the Company shall execute and the Trustee shall authenticate and
deliver to the depository, without service charge, a new Global Security in a
denomination equal to and in exchange for the unredeemed portion of the
principal of the Global Security so surrendered.
ARTICLE TWELVE - SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of such Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund
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payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. The
Company may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of a series, (1) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities, or which have otherwise been acquired by the
Company; provided that such Securities so delivered or applied as a credit have
not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the applicable Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less than 60
days prior to each sinking fund payment date for Securities of any series, the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series subject to
repayment in whole or in part at the option of the Holders thereof will, unless
otherwise provided in the terms of such Securities, be repaid at a price equal
to the principal amount thereof, together with interest, if any, thereon accrued
to the Repayment Date specified in or pursuant to the terms of such Securities.
The Company covenants that on or 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 therefor specified in the terms of such Security (or at such other place
or places of which the Company shall from time to time notify the Holders of
such Securities) not earlier than 60 days nor later than 30 days prior to the
Repayment Date (1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly completed by
the Holder (or by the Holder's attorney duly authorized in writing) or (2) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, or the National Association of Securities Dealers, Inc.
("NASD"), or a commercial bank or trust company in the United States setting
forth the name of the Holder of the Security, the principal amount of the
Security, the principal amount of the Security to be repaid, the CUSIP number,
if any, or a description of the tenor and terms of the Security, a statement
that the option to elect repayment is being exercised thereby and a guarantee
that the Security to be repaid, together with the duly completed form entitled
"Option to Elect Repayment" on the reverse of the Security, will be received by
the Trustee not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; provided, however, that such
telegram, telex, facsimile transmission or letter shall only be effective if
such Se-
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curity and form duly completed are received by the Trustee by such fifth
Business Day. If less than the entire principal amount of such Security is to be
repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable. If Securities of any series providing for repayment at the option of
the Holders hereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest thereon,
unless the Company shall default in the payment thereof) to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1302 an amount equal to
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the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made as provided in the preceding
sentence, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall not
be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any Registered
Security which is to be repaid in part only, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Company, a new Registered Security or
Securities of the same series, of any authorized denomination specified by the
Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid.
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision is
made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
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SECTION 1402. Defeasance and Discharge. Upon the Company's exercise of the
above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of (and premium
or Make-Whole Amount, if any) and interest, if any, on such Securities and any
coupons appertaining thereto when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 305, 306, 1002 and
1003, (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article. Subject to compliance with this Article
Fourteen, the Company may exercise its option under this Section notwithstanding
the prior exercise of its option under Section 1403 with respect to such
Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise of the above
option applicable to this Section with respect to any Securities of or within a
series, the Company shall be released from its obligations under Sections 1004
to 1009, inclusive, and, if specified pursuant to Section 301, its obligations
under any other covenant contained herein or in any indenture supplemental
hereto, with respect to such Outstanding Securities and any coupons appertaining
thereto on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
coupons appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with Sections 1004
to 1009, inclusive, or such other covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities and any
coupons appertaining thereto, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such Section or such other covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such Section or such other covenant or
by reason of reference
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in any such Section or such other covenant to any other provision herein or in
any other document and such omission to comply shall not constitute a default or
an Event of Default under Section 501(4) or 501(8) or otherwise, as the case may
be, but, except as specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities and any
coupons appertaining thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any coupons appertaining thereto
are then specified as payable at Stated Maturity, or (2) Government
Obligations applicable to such Securities and coupons appertaining thereto
(determined on the basis of the currency, currencies or currency unit in
which such Securities and coupons appertaining thereto are then specified
as payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms
will provide, not later than 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 to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal of (and premium
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 and (ii) any
mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any coupons appertaining thereto on the day on
which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any coupons appertaining thereto.
(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.
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(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(6) and 501(7) are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as
a result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the Trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
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SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium or Make-Whole Amount, if any) and interest, but such money need not be
segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
301, if, after a deposit referred to in Section 1404(a) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 301 or the terms of such Security to receive
payment in a currency or currency unit other than that in which the deposit
pursuant to Section 1404(a) has been made in respect of such Security, or (b) a
Conversion Event occurs in respect of the currency or currency unit in which the
deposit pursuant to Section 1404(a) has been made, the indebtedness represented
by such Security and any coupons appertaining thereto shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium or Make-Whole Amount, if any), and interest, if any,
on such Security as the same becomes due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such Security
into the currency or currency unit in which such Security becomes payable as a
result of such election or Conversion Event based on the applicable market
exchange rate for such currency or currency unit in effect on the second
Business Day prior to each payment date, except, with respect to a Conversion
Event, for such currency or currency unit in effect (as nearly as feasible) at
the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or Government Obligations (or other property and
any proceeds therefrom) held by
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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 20 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 25% 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 20 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.
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
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vote at such meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes after the time
appointed for any such meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at the reconvening of any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days; at the reconvening of any meeting adjourned or further adjourned for lack
of a quorum, the persons entitled to vote 25% in aggregate principal amount of
the then Outstanding Securities shall constitute a quorum for the taking of any
action set forth in the notice of the original meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities
represented at such meeting; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
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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 action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Securities of such series
that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings. (a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of 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
<PAGE>
-87-
at any meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of such
series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1502 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting, and the meeting may be
held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any Series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the fact, setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
<PAGE>
-88-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
TRINET CORPORATE REALTY TRUST, INC.
By: /S/ Elisa F. Di Tommaso
-----------------------------------
Name: Elisa F. Di Tommaso
Title: Vice President and Treasurer
Attest:/S/ Minnie P. Wright
-----------------------------------
Title: Assistant Vice President
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By: /S/ J. Bartolini
-----------------------------------
Name: J. Bartolini
Title: Vice President
Attest:/S/ D.G. Donovan
-----------------------------------
Title: Assistant Secretary
<PAGE>
EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR SECURITY
[Face of Security]
[If the Holder of this Security (as indicated below) is The Depository Trust
Company ("DTC") or a nominee of DTC, this Security is a Global Security and the
following two legends apply:
Unless this Security is presented by an authorized representative of The
Depository Trust Company ("DTC"), 55 Water Street, New York, New York to the
issuer or its agent for registration of transfer, exchange or payment, and such
Security issued is registered in the name of CEDE & CO., or such other name as
requested by an authorized representative of DTC, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since the
registered owner hereof, CEDE & CO., has an interest herein.
Unless and until this Security is exchanged in whole or in part for Securities
in certificated form, this Security may not be transferred except as a whole by
DTC to a nominee thereof or by a nominee thereof to DTC or another nominee of
DTC or by DTC or any such nominee to a successor of DTC or a nominee of such
successor.]
[If this Security is an Original Issue Discount Security, insert -- FOR PURPOSES
OF SECTION 1273 and 1275 OF THE UNITED STATES INTERNAL REVENUE CODE, THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS % OF ITS PRINCIPAL AMOUNT, THE
ISSUE DATE IS ________, 19__ [AND] THE YIELD TO MATURITY IS %__. [THE METHOD
USED TO DETERMINE THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT
ACCRUAL PERIOD OF __________, 19__ TO __________, 19__, IS ___% OF THE PRINCIPAL
AMOUNT OF THIS SECURITY.]
TRINET CORPORATE REALTY TRUST, INC.
[Designation of Series]
No. _______ $_______
TRINET CORPORATE REALTY TRUST, INC., a Maryland corporation (herein referred to
as the "Company," which term includes any successor corporation under the
Indenture
A-1
<PAGE>
referred to on the reverse hereof), for value received, hereby promises to pay
to ______________________________ or registered assigns the principal sum of
_______ Dollars on _____________________ (the "Stated Maturity Date") [or insert
date fixed for earlier redemption (the "Redemption Date," and together with the
Stated Maturity Date with respect to principal repayable on such date, the
"Maturity Date.")]
[If the Security is to bear interest prior to Maturity, insert -- and to pay
interest thereon from ______________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
__________ and _________ in each year (each, an "Interest Payment Date"),
commencing __________, at the rate of __% per annum, until the principal hereof
is paid or duly provided for. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Holder in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the ________ or ______ (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date [at the office or agency of the Company maintained for such purpose;
provided, however, that such interest may be paid, at the Company's option, by
mailing a check to such Holder at its registered address or by transfer of funds
to an account maintained by such Holder within the United States]. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date, and may be paid to the Holder
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.]
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at the
[Stated] Maturity Date and in such case the overdue principal of this Security
shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on demand
shall bear interest at the rate of % per annum (to the extent that the payment
of such interest shall be legally enforce-
A-2
<PAGE>
able), which shall accrue from the date of such demand for payment to the date
payment of such interest has been made or duly provided for, and such interest
shall also be payable on demand.]
The principal of this Security payable on the Stated Maturity Date [or the
principal of, premium or Make-Whole Amount, if any, and, if the Redemption Date
is not an Interest Payment Date, interest on this Security payable on the
Redemption Date] will be paid against presentation of this Security at the
office or agency of the Company maintained for that purpose in
___________________, in such coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.
Interest payable on this Security on any Interest Payment Date and on the
[Stated] Maturity Date [or Redemption Date, as the case may be,] will include
interest accrued from and including the next preceding Interest Payment Date in
respect of which interest has been paid or duly provided for (or from and
including ____________, if no interest has been paid on this Security) to but
excluding such Interest Payment Date or the [Stated] Maturity Date [or
Redemption Date, as the case may be.] If any Interest Payment Date or the
[Stated] Maturity Date or [Redemption Date] falls on a day that is not a
Business Day, as defined below, principal, premium or Make-Whole Amount, if any,
and/or interest payable with respect to such Interest Payment Date or [Stated]
Maturity Date [or Redemption Date, as the case may be,] will be paid on the next
succeeding Business Day with the same force and effect as if it were paid on the
date such payment was due, and no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date or [Stated] Maturity
Date [or Redemption Date, as the case may be.] "Business Day" means any day,
other than a Saturday or Sunday, on which banks in __________________ are not
required or authorized by law or executive order to close.
[If this Security is a Global Security, insert -- All payments of principal,
premium or Make-Whole Amount, if any, and interest in respect of this Security
will be made by the Company in immediately available funds.]
Reference is hereby made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Security shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
A-3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its facsimile corporate seal.
Dated:__________________ TRINET CORPORATE REALTY TRUST, INC.
By:_______________________________
Attest:
- -----------------------
Secretary
A-4
<PAGE>
[Reverse of Security]
TRINET CORPORATE REALTY TRUST, INC.
This Security is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of February , 1998, (herein called the "Indenture")
between the Company and Harris Trust and Savings Bank, as Trustee (herein called
the "Trustee," which term includes any successor trustee under the Indenture
with respect to the series of which this Security is a part), to which Indenture
and all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the duly authorized series of Securities
designated on the face hereof (collectively, the "Securities"), [if applicable,
insert -- and the aggregate principal amount of the Securities to be issued
under such series is limited to $______ (except for Securities authenticated and
delivered upon transfer of, or in exchange for, or in lieu of other
Securities).] All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
[If applicable, insert -- The Securities may not be redeemed prior to the Stated
Maturity Date.]
[If applicable, insert -- The Securities are subject to redemption [ (l) (If
applicable, insert -- on _________ in any year commencing with the year ____ and
ending with the year ____ through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, and (2) ] [If
applicable, insert -- at any time [on or after ___________], as a whole or in
part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount):
If redeemed on or before _______, __% and if redeemed during the 12-month period
beginning _______ of the years indicated at the Redemption Prices indicated
below.
A-5
<PAGE>
Year Redemption Price Year Redemption Price
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption [If applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date; provided, however, that installments of interest on this
Security whose Stated Maturity is on or prior to such Redemption Date will be
payable to the Holder of this Security, or one or more Predecessor Securities,
of record at the close of business on the relevant Record Dates referred to on
the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities are subject to redemption (1) on
_______ in any year commencing with the year ____ and ending with the year ____
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [on
or after _______], as a whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning ________ of the years
indicated,
Redemption Price for Redemption Price for
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, that installments of interest on this Security whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holder of
this Security, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company may
not, prior to _______, redeem any Securities as contemplated by [Clause (2) of]
the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than __% per annum.]
A-6
<PAGE>
[If applicable, insert -- The sinking fund for the Securities provides for
the redemption on _______ in each year, beginning with the year ____ and ending
with the year ____, of [not less than] $_______] [("mandatory sinking fund") and
not more than $_______] aggregate principal amount of the Securities. [The
Securities acquired or redeemed by the Company otherwise than through
[mandatory] sinking fund payments may be credited against subsequent [mandatory]
sinking fund payments otherwise required to be made in the [describe order]
order in which they become due.]]
Notice of redemption will be given by mail to Holders of Securities, not
less than 30 nor more than 60 days prior to the Redemption Date, all as provided
in the Indenture.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority of the aggregate principal amount of all Securities issued
under the Indenture at the time Outstanding and affected thereby. The Indenture
also contains provisions permitting the Holders of not less than a majority of
the aggregate principal amount of the Outstanding Securities, on behalf of the
Holders of all such Securities, to waive compliance by the Company with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit the
Holders of not less than a majority of the aggregate principal amount, in
certain instances, of the Outstanding Securities of any series to waive, on
behalf of all of the Holders of Securities of such series, certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and other Securities issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium or Make-Whole
Amount, if any) and interest on this Security at the times, places and rate, and
in the coin or currency, herein prescribed.
A-7
<PAGE>
As provided in the Indenture and subject to certain limitations therein
[and herein] set forth, the transfer of this Security is registrable in the
Security Register of the Company upon surrender of this Security for
registration of transfer at the office or agency of the Company in any place
where the principal of (and premium or Make-Whole Amount, if any) and interest
on this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or by his attorney duly authorized
in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
[and herein] set forth, this Security is exchangeable for a like aggregate
principal amount of Securities of different authorized denominations but
otherwise having the same terms and conditions, as requested by the Holder
hereof surrendering the same.
The Securities of this series are issuable only in registered form [without
coupons] in denominations of $_______ and any integral multiple thereof.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or premium or
Make-Whole Amount, if any, or the interest on this Security, or for any claim
based hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any past, present or
future stockholder, employee, officer or director, as such, of the Company or of
any successor, either directly or through the Company or any successor, whether
by virtue of any constitution, statute or rule of law or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
A-8
<PAGE>
The Indenture and the Securities 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 entirely in such State.
A-9
<PAGE>
EXHIBIT B
FORMS OF CERTIFICATION
EXHIBIT B-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
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 TriNet Corporate Realty Trust, Inc. 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.
B-1
<PAGE>
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] of such interest in
the above-captioned Securities in respect of which we are not able to certify
and as to which we understand an exchange for an interest in a permanent Global
Security or an exchange for and delivery of definitive Securities (or, if
relevant, collection of any interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ________, ____
[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 Signature)
Name:
Title:
B-2
<PAGE>
EXHIBIT B-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] principal amount of
the above-captioned Securities (i) is owned by person(s) that are not citizens
or residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States person(s)"), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such financial institution has agreed, on its own behalf or through its
agent, that we may advise TriNet Corporate Realty Trust, Inc. 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.
B-3
<PAGE>
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "Possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary Global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: _______ ____
[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:_______________________________________
B-4
- -------------------------------------------------------------------------------
TRINET CORPORATE REALTY TRUST, INC.
Issuer
to
HARRIS TRUST AND SAVINGS BANK
Trustee
-------------------------
Supplemental Indenture No.1
Dated as of February 27, 1998.
-------------------------
$125,000,000
of
6.75% Dealer remarketable securities due March 1, 2013
- -------------------------------------------------------------------------------
<PAGE>
SUPPLEMENTAL INDENTURE NO. 1, dated as of February 27, 1998 (the
"Supplemental Indenture"), between TRINET CORPORATE REALTY TRUST, INC., a
corporation duly organized and existing under the laws of the State of Maryland
(herein called the "Company"), and Harris Trust and Savings Bank, an Illinois
banking corporation duly organized and existing under the laws of the State of
Illinois, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore delivered to the Trustee an Indenture dated as
of February 27, 1998 (the "Senior Indenture"), a form of which has been filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, as an exhibit to the Company's Registration Statement on Form S-3
(Registration No. 333-42717), providing for the issuance from time to time of
Senior Debt Securities of the Company (the "Securities").
Section 301 of the Senior Indenture provides for various matters with
respect to any series of Securities issued under the Senior Indenture to be
established in an indenture supplemental to the Senior Indenture.
Section 901(7) of the Senior Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Senior Indenture to
establish the form or terms of Securities of any series as provided by Sections
201 and 301 of the Senior Indenture.
The Board of Directors of the Company has duly adopted resolutions
authorizing the Company to execute and deliver this Supplemental Indenture.
All the conditions and requirements necessary to make this Supplemental
Indenture, when duly executed and delivered, a valid and binding agreement in
accordance with its terms and for the purposes herein expressed, have been
performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of each of the
series of Securities provided for herein by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Notes or of either series thereof, as follows:
ARTICLE ONE
RELATION TO SENIOR INDENTURE; DEFINITIONS
SECTION 1.1. Relation to Senior Indenture.
This Supplemental Indenture constitutes an integral part of the Senior
Indenture.
SECTION 1.2. Definitions.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
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(1) Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Senior Indenture; and
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at the
time such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Indebtedness
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such 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.
"Annual Service Charge" for any period means the aggregate interest expense
for such period in respect of, and the amortization during such period of any
original issue discount of, Indebtedness of the Company and its Subsidiaries and
the amount of dividends which are payable during such period in respect of any
Disqualified Stock.
"Base Rate" means 5.657%.
"Business Day" means any day, other than a Saturday or Sunday, or a day on
which banking institutions in the City of New York are authorized or obligated
by law, regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Remarketing Dealer as having an actual or interpolated maturity
comparable to the remaining term of the Drs.
"Comparable Treasury Price" means (a) the offer price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) on the
Determination Date, as set forth on Telerate Page 500, adjusted to reflect
settlement on the Remarketing Date if prices quoted on Telerate Page 500 are for
settlement on any date other than the Remarketing Date, or (b) if such page (or
any successor page) is not displayed or does not contain such offer prices on
such Business Day, (i) the average of five Reference Treasury Dealer Quotations
for such Remarketing Date, excluding the highest and lowest of such Reference
Treasury Dealer Quotations (unless there is more than one highest or lowest
quotation, in which case only one such highest and/or lowest quotation shall be
excluded), or (ii) if the Remarketing Dealer obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such Reference Treasury
Dealer Quotations.
"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
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minus amounts which have been added, for the following (without duplication):
(i) interest 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 such period and (vi) amortization of deferred
charges.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at 311 West Monroe Street, Chicago,
Illinois 60606 and, for purposes of the Place of Payment provisions of Sections
305 and 1002 of the Senior Indenture, is located at c/o Harris Trust Company of
New York, 88 Pine Street, New York, New York 10005.
"Disqualified Stock" means, with respect to any Person, any Capital Stock
of such Person which by the terms of such Capital Stock (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(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 such Person, be paid in Capital
Stock which is not Disqualified Stock), in each case on or prior to the Stated
Maturity Date of the Drs.
"Determination Date" has the meaning specified in Section 2.6(a) hereof.
"Dollar Price" means the discounted present value to the Remarketing Date
of the cash flows on a bond (x) with a principal amount equal to the aggregate
principal amount of the Drs., (y) maturing on the Stated Maturity Date and (z)
bearing interest from the Remarketing Date, payable semi-annually (assuming a
360-day year consisting of twelve 30-day months) on the interest payment dates
of the Drs. at a rate equal to the Base Rate, using a discount rate equal to the
Treasury Rate.
"Drs." has the meaning specified in Section 2.1 hereof.
"DTC" means The Depository Trust Company or its successor.
"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 such period determined on a consolidated basis in
accordance with GAAP.
"Encumbrance" means any mortgage, lien, charge, pledge or security interest
of any kind.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder by the Commission.
"GAAP" means generally accepted accounting principles as used in the United
States applied on a consistent basis as in effect from time to time; provided
that solely for purposes of 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.
"Indebtedness" of the Company or any of its Subsidiaries means any
indebtedness of the Company or any Subsidiary, whether or not contingent, in
respect of (i) borrowed money or evidenced by bonds, notes, debentures or
similar instruments whether or not such indebtedness is secured by any
Encumbrance existing on property owned by the Company or any of its
Subsidiaries, (ii) indebtedness for borrowed money of a Person other than the
Company or a Subsidiary which is secured by any Encumbrance existing on property
owned by the Company or any Subsidiary, to the extent of the lesser of (x) the
amount of indebtedness so secured and (y) the fair market value of the property
subject to such Encumbrance, (iii) the reimbursement obligations, contingent or
otherwise, in connection with any letters of credit actually issued or amounts
representing the balance deferred and unpaid of the purchase price of any
property or services, except any such balance that constitutes an accrued
expense or trade payable, or all conditional sale obligations or obligations
under any title retention agreement, (iv) the principal amount of all
obligations of the Company or any Subsidiary with respect to redemption,
repayment or other repurchase of any Disqualified Stock, (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, or (vi) interest rate swaps, caps or similar agreements and foreign
exchange contracts, currency swaps or similar agreements, to the extent, in the
case of items of indebtedness under (i) through (iii) above, that any such items
(other than letters of credit) would appear as a liability on the Company's
consolidated balance sheet in accordance with GAAP, and also includes, to the
extent not otherwise included, any obligation by the Company or any Subsidiary
to be liable for, or to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business), 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 of its
Subsidiaries whenever the Company or such Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof).
"Interest Payment Date" shall have the meaning set forth in Section 2.3.
"Make-Whole Amount" means the excess, if any, of (i) the aggregate present
value as of the date of such redemption of each dollar of principal being
redeemed and the amount of interest (exclusive of interest accrued to the date
of redemption) that would have been payable in respect of such dollar if such
redemption had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date such notice of redemption is given) from the
applicable Principal Repayment Date, over (ii) the aggregate principal amount of
the Drs. being redeemed.
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"Notification Date" shall have the meaning specified in Section 2.6(a).
"Principal Repayment Date" means the date on which all principal and
interest in respect of the Drs. would have been payable to a holder if such
redemption had not been made, namely (i) in the case of a redemption of Drs. at
any time prior to the Remarketing Date, the Remarketing Date, and (ii) in the
case of a redemption of Drs. at any time after the Remarketing Date, the Stated
Maturity Date.
"Reference Corporate Dealer" means J.P. Morgan Securities Inc. and four
other leading dealers of publicly-traded debt securities of the Company to be
chosen by the Company and approved by the Remarketing Dealer. If any of such
persons shall cease to be a leading dealer of publicly-traded debt securities of
the Company, then the Remarketing Dealer may replace such person with any other
leading dealer of publicly-traded debt securities of the Company.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in The City of New York (which may include the Remarketing Dealer)
selected by the Remarketing Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer, the offer price for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) for settlement
on the Remarketing Date, quoted in writing to the Remarketing Dealer by such
Reference Treasury Dealer by 3:30 p.m. on the Determination Date.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the yields
under the respective headings "This Week" and "Last Week" published in the
Statistical Release most recently published prior to the date of determination
under the caption "Treasury Constant Maturities" for the maturity (rounded to
the nearest month) corresponding to the remaining life to the applicable
Principal Repayment Date, as of the redemption date, of the principal being
redeemed. If no maturity set forth under such heading exactly corresponds to the
maturity of such principal, yields for the two published maturities most closely
corresponding to the maturity of such principal shall be calculated pursuant to
the immediately preceding sentence, and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis, rounding
in each of the relevant periods to the nearest month.
"Regular Record Date" shall have the meaning specified in Section 2.3.
"Remarketing Agreement" means the Remarketing Agreement dated as of
February 27, 1998 between the Company and J.P. Morgan Securities Inc., as
Remarketing Dealer, as such agreement may be amended from time to time.
"Remarketing Date" shall have the meaning specified in Section 2.3 hereof.
"Remarketing Dealer" means J.P. Morgan Securities Inc. or its successor and
assigns under the Remarketing Agreement.
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"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively traded United States government
securities adjusted to constant maturities, or, if such statistical release is
not published at the time of any determination under the terms of the Drs., then
such other reasonably comparable index which shall be designated by the Company.
"Subsidiary" means, with respect to any Person, any corporation or other
entity of which a majority of (i) the voting power of the voting equity
securities or (ii) the outstanding equity interests of which are owned, directly
or indirectly, by such Person. For the purposes of this definition, "voting
equity securities" means equity securities having voting power for the election
of directors, whether at all times or only so long as no senior class of
security has such voting power by reason of any contingency.
"Telerate Page 500" means the display designated as "Telerate Page 500" on
Dow Jones Markets Limited (or such other page as may replace Telerate Page 500
on such service) or such other service displaying the offer price for the
Comparable Treasury Issue specified in clause (a) of the definition of
Comparable Treasury Price, as may replace Dow Jones Markets Limited.
"Total Assets" as of any date means the sum of (i) the Undepreciated Real
Estate Assets and (ii) all other assets of the Company and its Subsidiaries
determined in accordance with GAAP (but excluding accounts receivable and
intangibles).
"Total Unencumbered Assets" means the sum of (i) those Undepreciated Real
Estate Assets not subject to an Encumbrance 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 accounts
receivable and intangibles).
"Treasury Rate" means the annual rate equal to the semi-annual equivalent
yield to maturity or interpolated (on a 30/360 day count basis) yield to
maturity on the Determination Date of the Comparable Treasury Issue for value on
the Remarketing Date, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price.
"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.
"Unsecured Indebtedness" means Indebtedness which is not secured by any
Encumbrance upon any of the properties of the Company or any of its
Subsidiaries.
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ARTICLE TWO
THE SERIES OF SECURITIES
SECTION 2.1. Title of the Securities.
There shall be Securities designated the "6.75% Dealer remarketable
securities" due March 1, 2013" (the "Drs.")
SECTION 2.2. Limitation on Aggregate Principal Amount.
The aggregate principal amount of the Drs. shall be limited to
$125,000,000, and, except as provided in this Section and in Section 306 of the
Senior Indenture, the Company shall not execute and the Trustee shall not
authenticate or deliver Drs. in excess of such aggregate principal amount.
Nothing contained in this Section 2.2 or elsewhere in this Supplemental
Indenture, or in the Drs., is intended to or shall limit execution by the
Company or authentication or delivery by the Trustee of Drs. under the
circumstances contemplated by Sections 303, 304, 305, 306, 906, 1107 and 1305 of
the Senior Indenture.
SECTION 2.3. Interest and Interest Rates; Maturity Date of Drs.
The Drs. will bear interest from February 27, 1998 or from the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for, payable semi-annually in arrears on March 1 and September 1 of each year,
commencing September 1, 1998 (each, an "Interest Payment Date"), to the Persons
in whose name such Drs. are registered on the fifteenth calendar (whether or not
a Business Day), immediately preceding the related Interest Payment Date (each,
a "Regular Record Date"). Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months. The interest so payable on any Drs.
which is not punctually paid or duly provided for on any Interest Payment Date
shall be payable to the Person in whose name such Drs. is registered on the
relevant Regular Record Date, at the close of business by notice by or on behalf
of the Company to the holders of the Drs., mailed by first class mail not less
than 15 days prior to the Regular Record Date to their last address as they
shall appear upon the Securities Register not less than five days preceding the
date of payment. Payment may be made by check mailed to the holder's address as
it appears on the Securities Register.
The Drs. will bear interest at the rate of 6.75% per annum to March 1, 2003
(the "Remarketing Date"). If pursuant to the Remarketing Agreement, the
Remarketing Dealer elects to remarket the Drs., then except as otherwise
provided (i) the Drs. shall be subject to mandatory tender to the Remarketing
Dealer at 100% of the principal amount thereof for remarketing on the
Remarketing Date subject to the terms and conditions provided for in Section 2.5
herein and (ii) on and after the Remarketing Date, the Drs. shall bear interest
at a rate determined by the Remarketing Dealer in accordance with the procedures
set forth in Section 2.6 herein.
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If any Interest Payment Date or the Stated Maturity Date falls on a day
that is not a Business Day, the required payment shall be made on the next
Business Day as if it were made on the date such payment was due and no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date or Stated Maturity Date, as the case may be.
The Drs. will mature on March 1, 2013 (the "Stated Maturity Date").
SECTION 2.4. Limitations on Incurrence of Indebtedness.
(a) The Company will not, and will not permit any of its Subsidiaries to,
incur any Indebtedness if, immediately after giving effect to the incurrence of
such 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 such filing is
not permitted under the Exchange Act, with the Trustee) prior to the incurrence
of such 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 such proceeds were not used to acquire
real estate assets or mortgages receivable or used to reduce Indebtedness), by
the Company or any of its Subsidiaries since the end of such calendar quarter,
including those proceeds obtained in connection with the incurrence of such
additional Indebtedness.
(b) In addition to the limitation set forth in subsection (a) of this
Section 2.4, the Company will not, and will not permit any of its Subsidiaries
to, 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 such additional
Indebtedness is to be incurred shall have been less than 2.0:1, on a pro forma
basis after giving effect thereto and to the application of the proceeds
therefrom, and calculated on the assumption that (i) such Indebtedness and any
other Indebtedness incurred by the Company and its Subsidiaries since the first
day of such four-quarter period and the application of the proceeds therefrom,
including to refinance other Indebtedness, had occurred at the beginning of such
period; (ii) the repayment or retirement of any other Indebtedness by the
Company and its Subsidiaries since the first day of such four-quarter period had
been repaid or retired at the beginning of such period (except that, in making
such computation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average daily balance of such Indebtedness
during such period); (iii) in the case of Acquired Indebtedness or Indebtedness
incurred in connection with any acquisition since the first day of such
four-quarter period, the related acquisition had occurred as of the first day of
such period with the appropriate adjustments with respect to such acquisition
being included in such pro forma calculation; and (iv) in the case of any
acquisition or disposition by the Company or its Subsidiaries of any asset or
group of assets since the first day of such four-quarter period, whether by
merger, stock purchase or sale, or asset purchase or sale, such acquisition or
disposition or any related repayment of Indebtedness had occurred as of the
first day of such period with the appropriate adjustments with respect to such
acquisition or disposition being included in such pro forma calculation.
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(c) In addition to the limitations set forth in subsections (a) and (b) of
this Section 2.4, the Company will not, and will not permit any Subsidiary to,
incur any Indebtedness secured by any Encumbrance upon any of the property of
the Company or any of its Subsidiaries if, immediately after giving effect to
the incurrence of such 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 that is secured by any Encumbrance on property of the
Company or any of its Subsidiaries is greater than 40% 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 such filing is not permitted under the Exchange Act, with
the Trustee) prior to the incurrence of such 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
such proceeds were not used to acquire real estate assets or mortgages
receivable or used to reduce Indebtedness), by the Company or any of its
Subsidiaries since the end of such calendar quarter, including those proceeds
obtained in connection with the incurrence of such additional Indebtedness.
(d) The Company and its Subsidiaries may not at any time own Total
Unencumbered Assets equal to or less than 185% of the aggregate outstanding
principal amount of the Unsecured Indebtedness of the Company and its
Subsidiaries on a consolidated basis determined in accordance with GAAP.
(e) For purposes of this Section 2.4, Indebtedness shall be deemed to be
"incurred" by the Company or a Subsidiary whenever the Company or such
Subsidiary shall create, assume, guarantee or otherwise become liable in respect
thereof.
SECTION 2.5. Mandatory Tender on Remarketing Date; Purchase and Settlement.
(a) On a Business Day not later than five Business Days prior to the
Remarketing Date (the "Notification Date"), the Remarketing Dealer will notify
the Company and the Trustee as to whether it elects to purchase all of the
outstanding Drs. on the Remarketing Date. If, and only if, the Remarketing
Dealer so elects, the Drs. shall be subject to mandatory tender to the
Remarketing Dealer for purchase and remarketing on the Remarketing Date, upon
the terms and subject to the conditions described herein and in the Remarketing
Agreement. The purchase price of the Drs. shall be equal to 100% of the
principal amount thereof. No holder or beneficial owner of the Drs. shall have
any rights or claims under the Remarketing Agreement or against the Company or
the Remarketing Dealer as a result of the Remarketing Dealer not purchasing such
Drs.
(b) The tender and settlement procedures with respect to the Drs. set forth
in the Remarketing Agreement shall be subject to modification, without the
consent of the holders of the Drs., to the extent required by DTC or, if the
book-entry system is no longer available for the Drs. at the time of the
remarketing, to the extent required to facilitate the tendering and remarketing
of Drs. in certificated form. In addition, the Remarketing Dealer may modify the
settlement procedures without the consent of the holders of the Drs. in order to
facilitate the settlement process.
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(c) The Company hereby agrees with the Trustee and the holders of Drs. that
(i) at all times, it will use its best efforts to maintain the Drs. in
book-entry form with DTC or any successor thereto and to appoint a successor
depository to the extent necessary to maintain the Securities in book-entry form
and (ii) it waives any discretionary right that it otherwise may have under the
Indenture to cause the Drs. to be issued in certificated form.
SECTION 2.6. Determination of Interest Rate to Maturity.
(a) The Remarketing Dealer shall determine the interest rate the Drs. will
bear from the Remarketing Date to the Stated Maturity Date (the "Interest Rate
to Maturity") on the third Business Day immediately preceding the Remarketing
Date (the "Determination Date") by soliciting by 3:30 p.m., New York City time,
the Reference Corporate Dealers (defined below) for firm, committed bids to
purchase all outstanding Drs. at the Dollar Price, and by selecting the lowest
such firm, committed bid (regardless of whether each of the Reference Corporate
Dealers actually submit bids). Each bid shall be expressed in terms of the
Interest Rate to Maturity that the Drs. would bear (quoted as a spread over the
Base Rate) based on the following assumptions:
(i) the Drs. would be sold to the Reference Corporate Dealer on the
Remarketing Date for settlement on the same day;
(ii) the Drs. would mature on the Stated Maturity Date;
(iii) the Drs. would bear interest from the Remarketing Date at a
stated rate equal to the Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi-annually on the interest payment dates for
the Drs. and
(iv) the winning bidder will bear all of its own expenses (including
legal fees) in connection with any resale of the Drs.
The Interest Rate to Maturity announced by the Remarketing Dealer as a
result of such process will be quoted to the nearest one hundred-thousandth
(0.00001) of one percent per annum and, absent manifest error, will be binding
and conclusive upon holders of the Drs., the Company and the Trustee. The
Remarketing Dealer shall have the discretion to select the time at which the
Comparable Treasury Price is determined on the Determination Date.
(b) The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Drs. for its own account or (ii) sell the Drs. to the
Reference Corporate Dealer submitting the lowest firm, committed, bid pursuant
to this Section 2.6. If two or more Reference Corporate Dealers submit
equivalent bids which constitute the lowest firm, committed bid, the Remarketing
Dealer may in its sole discretion elect to sell the Drs. to any such Reference
Corporate Dealer.
(c) If the Remarketing Dealer has elected to remarket the Drs. as provided
herein, then it shall notify the Company, the Trustee and DTC by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), by 5:00 p.m., New York City time, on the Determination Date of
the Interest Rate to Maturity applicable to the Drs. effective from and
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including the Remarketing Date; provided that, if the Dollar Price is being
determined by the Remarketing Dealer because the Company has elected to exercise
its option described in clause (x) of Section 2.8(a) of this Supplemental
Indenture, the Dollar Price shall be determined by the Remarketing Dealer and
communicated to the Company by no later than 10:00 a.m. on the Determination
Date.
SECTION 2.7. Repurchase.
If the Remarketing Dealer (i) does not elect to exercise its right to a
mandatory tender of the Drs., (ii) shall not have received by the required time
on the Determination Date any firm, committed bids to purchase all of the Drs.
in accordance with Section 2.6 of this Supplemental Indenture or (iii) for any
other reason does not purchase all of the Drs. on the Remarketing Date, then the
Company shall repurchase on the Remarketing Date, at a price equal to 100% of
the principal amount of the Drs. plus all accrued interest, if any, on the Drs.
to (but excluding) the Remarketing Date, any Drs. that have not been purchased
by the Remarketing Dealer on the Remarketing Date.
SECTION 2.8. Redemption.
(a) If the Remarketing Dealer has elected to remarket the Drs. on the
Remarketing Date, the Company shall have the right to redeem the Drs., in whole
but not in part, from the Remarketing Dealer on the Remarketing Date at a
redemption price equal to the greater of (i) 100% of the aggregate principal
amount of the Drs. and (ii) the Dollar Price, by giving written notice of such
redemption to the Remarketing Dealer no later than
(x) the Business Day immediately prior to the Determination Date or
(y) if fewer than three Reference Corporate Dealers submit firm,
committed bids to the Remarketing Dealer on the Determination Date in
accordance with Section 2.6 of this Supplemental Indenture,
immediately after the deadline set by the Remarketing Dealer for
receiving such bids has passed.
In either such case, the Company shall pay such redemption price for the
Drs. in same-day funds by wire transfer on the Remarketing Date to an account
designated by the Remarketing Dealer.
(b) The Drs. may be redeemed at any time prior to or after the Remarketing
Date at the option of the Company, in whole or in part, at a redemption price
equal to the sum of (i) the principal amount of the Drs. being redeemed plus
accrued interest thereon to the redemption date and (ii) the Make-Whole Amount,
if any, with respect to such Drs.
Notice of any such redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of the Drs. to be
redeemed. Unless the Company defaults in payment of the redemption price, on and
after the redemption date, interest will cease to accrue on the Drs. or portions
thereof called in connection with a redemption. If less than all the Drs. are to
be redeemed at the option of the Company, the Company will notify the Trustee at
least
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45 days prior to the redemption date (or such shorter period as is satisfactory
to the Trustee) of the aggregate principal amount of Drs. to be redeemed and
their redemption date. The Trustee shall select, in such manner as it shall deem
fair and appropriate, the Drs. to be redeemed in whole or in part. Drs. may be
redeemed in part in the minimum authorized denomination of the Drs. or in any
integral multiple thereof.
SECTION 2.9. Places of Payment.
The Places of Payment where the Drs. may be presented or surrendered for
payment, where the Drs. may be surrendered for registration of transfer or
exchange and where notices and demands to and upon the Company in respect of the
Drs. and the Senior Indenture may be served shall be in (i) the Borough of
Manhattan, The City of New York, New York, and the office or agency for such
purpose shall initially be located at c/o Harris Trust Company of New York, 77
Water Street and (ii) the City of Chicago, Illinois and the office or agency for
such purpose shall initially be located at Harris Trust and Savings Bank, 311
West Monroe Street, Chicago, Illinois 60606.
SECTION 2.10. Method of Payment.
Payment of the principal of and interest on the Drs. will be made at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York (which shall initially be an office or agency of
the Trustee), in immediately available funds, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the
Company, payments of principal and interest on the Drs. (other than payments of
principal and interest due on the Stated Maturity Date) may be made (i) by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer to an account
maintained by the Person entitled thereto located within the United States.
SECTION 2.11. Registered Securities; Global Form.
The Drs. shall be issuable and transferable in fully registered form as
Registered Securities, without coupons in denominations of $1,000 and any
integral multiple thereof. The Drs. shall each be issued in the form of one or
more permanent Global Securities. The depository for the Drs. shall be DTC. The
Drs. shall not be issuable in definitive form except as provided in Section 305
of the Senior Indenture. The Drs. shall be substantially in the form attached as
Exhibit A hereto.
SECTION 2.12. Registrar and Paying Agent.
The Trustee shall initially serve as Registrar and Paying Agent for the
Drs.
SECTION 2.13. Defeasance.
The provisions of Sections 1402 and 1403 of the Senior Indenture, together
with the other provisions of Article Fourteen of the Senior Indenture, shall be
applicable to the Drs. The
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<PAGE>
provisions of Section 1403 of the Senior Indenture shall apply to the covenants
set forth in Sections 2.4 and 2.16 of this Supplemental Indenture and to those
covenants specified in Section 1403 of the Senior Indenture.
SECTION 2.14. Events of Default.
The provisions of clause (5) of Section 501 of the Senior Indenture as
applicable with respect to the Drs. shall be deemed to be amended and restated
in their entirety to read as follows:
(5) default under any bond, debenture, note, mortgage, indenture or
instrument under which there may be issued or by which there may be secured
or evidenced by any indebtedness for money borrowed by the Company (or by
any Subsidiary, the repayment of which the Company has guaranteed or for
which the Company is directly responsible or liable as obligor or
guarantor), having an aggregate principal amount outstanding of at least
$10,000,000, whether such indebtedness now exists or shall hereafter be
created, which default shall have resulted in such indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable, without such indebtedness having
been discharged, or such acceleration having been rescinded or annulled,
within a period of 10 days after there shall have been given written
notice, by registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder;
or
The provisions of Section 501 of the Senior Indenture as applicable with
respect to the Drs. shall be further deemed to be amended by renumbering
existing clause (8) to be clause (9) and by adding the following new clause (8):
(9) the entry by a court of competent jurisdiction of one or more
judgments, orders or decrees against the Company or any of its Subsidiaries
in an aggregate amount (excluding amounts covered by insurance) in excess
of $10,000,000 and such judgments, orders or decrees remain undischarged,
unstayed and unsatisfied in an aggregate amount (excluding amounts covered
by insurance) in excess of $10,000,000 for a period of 30 consecutive days;
or
SECTION 2.15. Acceleration of Maturity; Rescission and Annulment.
The provisions of the first paragraph of Section 502 of the Senior
Indenture as applicable with respect to the Drs. shall be deemed to be amended
and restated in their entirety to read as follows:
13
<PAGE>
If an Event of Default with respect to the Securities 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
may declare the principal (or, if any Securities are Original Issue Discount
Securities or Indexed Securities, such portion of the principal as may be
specified in the terms thereof) of, and the Make-Whole Amount, if any, on, all
the Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall become immediately
due and payable. If an Event of Default with respect to the Securities of any
series set forth in Section 501(6) of the Senior 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 (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) plus accrued interest to the date the Securities
are paid plus the Make-Whole Amount, if any, on the Securities.
SECTION 2.16. 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) 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.
The Company will also in any event (x) within 15 days of each Required
Filing Date (i) if the Company is not then subject to Section 13 or 15(d) of the
Exchange Act, transmit by mail to all Holders of the Drs., 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 annual reports, quarterly reports and other documents which
the Company is required to file with the Commission or 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 2.17. Waiver of Certain Covenants.
Notwithstanding the provisions of Section 1009 of the Senior Indenture, the
Company may omit in any particular instance to comply with any term, provision
or condition set forth in Sections 1004 to 1008, inclusive, of the Senior
Indenture, with Sections 2.4 and 2.16 of this Supplemental Indenture and with
any other term, provision or condition with respect to the Drs. (except any such
term, provision or condition which could not be amended without the consent of
all Hold-
14
<PAGE>
ers of the Drs. ), if before or after the time for such compliance the Holders
of at least a majority in principal amount of all outstanding Drs., by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with 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 THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Senior Indenture.
Except as expressly modified or amended hereby, the Senior Indenture
continues in full force and effect and is in all respects confirmed and
preserved.
SECTION 3.2. Governing Law.
This Supplemental Indenture and each Drs. shall be governed by and
construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts.
This Supplemental 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 instrument.
15
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
TRINET CORPORATE REALTY TRUST, INC.
By: /S/ Elisa F. Di Tommaso
-----------------------------------
Name: Elisa F. Di Tommaso
Title: Vice President and Treasurer
HARRIS TRUST AND SAVINGS BANK, as Trustee
By: /S/ D.G. Donovan
-----------------------------------
Name: D.G. Donovan
Title: Assistant Vice President
By: /S/ M. Tinerella
-----------------------------------
Title: Assistant Secretary
<PAGE>
EXHIBIT A
Exhibit A to Supplemental Indenture
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
TRINET CORPORATE REALTY TRUST, INC.
6.75% Dealer remarketable securitySM ("Drs.SM")
due March 1, 2013
No. 1
$125,000,000 CUSIP: 896287 AD1
TriNet Corporate Realty Trust, Inc., a Maryland corporation (hereinafter
called the "Company"), for value received, hereby promises to pay to CEDE & CO.
or registered assigns, the principal sum of ONE HUNDRED TWENTY-FIVE MILLION U.S.
DOLLARS on March 1, 2013, at the office or agency of the Company in the Borough
of Manhattan, The City of New York, State of New York, in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts, and to pay interest, semi-annually
on March 1 and September 1 of each year (each, an "Interest Payment Date"), on
said principal sum at the rate per annum specified below, at such office or
agency, in like coin or currency, from the March 1 or September 1, as the case
may be, to which interest on the Securities has been paid preceding the date
hereof (unless the date hereof is a March 1 or a September 1 to which interest
has been paid, in which case from the date hereof, or unless the date hereof is
prior to any interest having been paid, in which case from February 27, 1998)
until payment of said principal sum has been made or duly provided for. If the
Company shall default in the payment of interest when due on such March 1 or
September 1, then this Security shall bear interest from the next preceding date
to which interest has been paid, or, if no interest has been paid, from February
27, 1998. The interest so payable on any March 1 or September 1 shall be paid to
the person in whose name this Security shall be registered at the close of
business on the fifteenth calendar day (whether or not
- ----------
SM "Dealer remarketable security" and "Drs." are service marks of J.P. Morgan
Securities Inc.
<PAGE>
a Business Day) immediately preceding the related Interest Payment Date (each, a
"Regular Record Date"). For purposes of this Security, "Business Day" means any
day other than a Saturday, a Sunday or a day on which banking institutions in
The City of New York are authorized or obligated by law, regulation or executive
order to be closed.
If and to the extent the Company shall default in the payment of the
interest due on any interest payment date, such defaulted interest shall be paid
to the person in whose name this Security is registered at the close of business
on a record date established for such payment by notice by or on behalf of the
Company to the holders of the Securities mailed by first-class mail not less
than fifteen days prior to such record date to their last address as they shall
appear upon the Security register, such record date to be not less than five
days preceding the date of payment of such defaulted interest. The Company may
pay interest by check mailed to the holder's address as it appears on the
Security register.
The rate of interest on this Security shall be 6.75% per annum to March 1,
2003 (the "Remarketing Date"). If the Remarketing Dealer elects to remarket the
Securities pursuant to the Remarketing Agreement dated as of February 27, 1998
(the "Remarketing Agreement") between J.P. Morgan Securities Inc., as
Remarketing Dealer (the "Remarketing Dealer"), and the Company, then, except as
otherwise set forth on the reverse hereof, (i) this Security shall be subject to
mandatory tender to the Remarketing Dealer for remarketing on the Remarketing
Date, on the terms and subject to the conditions set forth on the reverse
hereof, and (ii) on and after the Remarketing Date, this Security shall bear
interest at the rate determined by the Remarketing Dealer in accordance with the
procedures set forth in Section 4 on the reverse hereof (the "Interest Rate to
Maturity").
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This Security shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been executed by the Trustee
under the Indenture referred to on the reverse hereof.
-2-
<PAGE>
IN WITNESS WHEREOF, TriNet Corporate Realty Trust, Inc. has caused this
Security to be signed by its duly authorized officers and has caused its
corporate seal to be affixed hereunto.
TRINET CORPORATE REALTY TRUST, INC.
By: ____________________________________
Title:
Attest:
- -------------------------
Secretary
Certificate of Authentication
This is one of the Securities of the series designated therein and
described in the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By: ____________________________________
Authorized Signatory
-3-
<PAGE>
TriNet Corporate Realty Trust, Inc.
6.75% Dealer remarketable securitySM ("Drs. SM")
due March 1, 2013
1. Indenture. (a) This Security is one of the duly authorized issue of debt
securities of the Company (herein referred to as the "Debt Securities") of the
series hereinafter specified, all issued or to be issued under and pursuant to
an indenture and a supplemental indenture each dated as of February 27, 1998
(the "Indenture") and each duly executed and delivered by the Company to Harris
Trust and Savings Bank, as Trustee (herein referred to as the "Trustee"), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders (the words
"holders", "holder", "Securityholders" or "Securityholder" mean the registered
holder(s)) of the Debt Securities.
(b) The Debt Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest, if any, at different rates, may be
denominated in different currencies, may be subject to different redemption
provisions, if any, may be subject to different sinking funds, if any, may be
subject to additional covenants and Events of Default and may otherwise vary as
provided in the Indenture. This Security is one of the series designated as the
6.75% Dealer remarketable securitiesSM ("Drs.SM") due March 1, 2013 of the
Company and such series is limited in aggregate principal amount to
$125,000,000. References herein to "Securities" or "Drs." shall mean the Debt
Securities of said series.
(c) All capitalized terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
2. Mandatory Tender on Remarketing Date; Purchase and Settlement. On a
Business Day not later than five Business Days prior to the Remarketing Date
(the "Notification Date"), the Remarketing Dealer will notify the Company and
the Trustee as to whether it elects to purchase all of the outstanding Drs. on
the Remarketing Date. If, and only if, the Remarketing Dealer so elects, the
Drs. shall be subject to mandatory tender to the Remarketing Dealer for purchase
and remarketing on the Remarketing Date, upon the terms and subject to the
conditions described herein and in the Remarketing Agreement. The purchase
- ----------
SM "Dealer remarketable security" and "Drs." are service marks of J.P. Morgan
Securities Inc.
R-1
<PAGE>
price of the Drs. shall be equal to 100% of the principal amount thereof. No
holder or beneficial owner of any Securities shall have any rights or claims
under the Remarketing Agreement or against the Company or the Remarketing Dealer
as a result of the Remarketing Dealer not purchasing such Securities.
3. Maintenance of Book-Entry System. (a) The tender and settlement
procedures with respect to the Securities set forth in the Remarketing Agreement
shall be subject to modification, without the consent of the holders of the
Securities, to the extent required by DTC or, if the book-entry system is no
longer available for the Securities at the time of the remarketing, to the
extent required to facilitate the tendering and remarketing of Securities in
certificated form. In addition, the Remarketing Dealer may modify the settlement
procedures without the consent of the holders of the Securities in order to
facilitate the settlement process.
(b) The Company hereby agrees with the Trustee and the holders of
Securities that (i) at all times, it will use its best efforts to maintain the
Securities in book-entry form with DTC or any successor thereto and to appoint a
successor depository to the extent necessary to maintain the Securities in
book-entry form and (ii) it waives any discretionary right that it otherwise may
have under the Indenture to cause the Securities to be issued in certificated
form.
4. Determination of Interest Rate to Maturity; Notification Thereof. The
Remarketing Dealer shall determine the interest rate the Drs. will bear from the
Remarketing Date to the Stated Maturity Date (the "Interest Rate to Maturity")
on the third Business Day immediately preceding the Remarketing Date (the
"Determination Date") by soliciting by 3:30 p.m., New York City time, the
Reference Corporate Dealers (defined below) for firm, committed bids to purchase
all outstanding Drs. at the Dollar Price (defined below), and by selecting the
lowest such firm, committed bid (regardless of whether each of the Reference
Corporate Dealers actually submit bids). Each bid shall be expressed in terms of
the Interest Rate to Maturity that the Drs. would bear (quoted as a spread over
5.657% per annum (the "Base Rate")) based on the following assumptions:
(i) the Drs. would be sold to the Reference Corporate Dealer on the
Remarketing Date for settlement on the same day;
(ii) the Drs. would mature on the Stated Maturity Date;
(iii) the Drs. would bear interest from the Remarketing Date at a
stated rate equal to the Interest Rate to Maturity bid by such Reference
Corporate Dealer, payable semi-annually on the interest payment dates for
the Drs. and
(iv) the winning bidder will bear all of its own expenses (including
legal fees) in connection with any resale of the Drs.
R-2
<PAGE>
The Interest Rate to Maturity announced by the Remarketing Dealer as a result of
such process will be quoted to the nearest one hundred-thousandth (0.00001) of
one percent per annum and, absent manifest error, will be binding and conclusive
upon holders of the Drs., the Company and the Trustee. The Remarketing Dealer
shall have the discretion to select the time at which the Comparable Treasury
Price is determined on the Determination Date.
The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Drs. for its own account or (ii) sell the Drs. to the
Reference Corporate Dealer submitting the lowest firm, committed, bid pursuant
to this Section 4 of this Security. If two or more Reference Corporate Dealers
submit equivalent bids which constitute the lowest firm, committed bid, the
Remarketing Dealer may in its sole discretion elect to sell the Drs. to any such
Reference Corporate Dealer.
If the Remarketing Dealer has elected to remarket the Drs. as provided
herein, then it shall notify the Company, the Trustee and DTC by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), by 5:00 p.m., New York City time, on the Determination Date of
the Interest Rate to Maturity applicable to the Drs. effective from and
including the Remarketing Date; provided that, if the Dollar Price is being
determined by the Remarketing Dealer because the Company has elected to exercise
its option described in clause (x) of subsection 6(a) of this Security, the
Dollar Price shall be determined by the Remarketing Dealer and communicated to
the Company by no later than 10:00 a.m. on the Determination Date. .
"Dollar Price" means the discounted present value to the Remarketing Date
of the cash flows on a bond (x) with a principal amount equal to the aggregate
principal amount of the Drs., (y) maturing on the Stated Maturity Date and (z)
bearing interest from the Remarketing Date, payable semi-annually (assuming a
360-day year consisting of twelve 30-day months) on the interest payment dates
of the Drs. at a rate equal to the Base Rate, using a discount rate equal to the
Treasury Rate (defined below).
"Reference Corporate Dealer" means J.P. Morgan Securities Inc. and four
other leading dealers of publicly-traded debt securities of the Company to be
chosen by the Company and approved by the Remarketing Dealer. If any of such
persons shall cease to be a leading dealer of publicly-traded debt securities of
the Company, then the Remarketing Dealer may replace such person with any other
leading dealer of publicly-traded debt securities of the Company.
"Treasury Rate" means the annual rate equal to the semi-annual equivalent
yield to maturity or interpolated (on a 30/360 day count basis) yield to
maturity on the Determination Date of the Comparable Treasury Issue (defined
below) for value on the Remarketing Date, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price (as defined below).
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<PAGE>
"Comparable Treasury Issue" means the United States Treasury security
selected by the Remarketing Dealer as having an actual or interpolated maturity
comparable to the remaining term of the Drs.
"Comparable Treasury Price" means (a) the offer price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) on the
Determination Date, as set forth on Telerate Page 500 (as defined below),
adjusted to reflect settlement on the Remarketing Date if prices quoted on
Telerate Page 500 are for settlement on any date other than the Remarketing
Date, or (b) if such page (or any successor page) is not displayed or does not
contain such offer prices on such Business Day, (i) the average of five
Reference Treasury Dealer Quotations for such Remarketing Date, excluding the
highest and lowest of such Reference Treasury Dealer Quotations (unless there is
more than one highest or lowest quotation, in which case only one such highest
and/or lowest quotation shall be excluded), or (ii) if the Remarketing Dealer
obtains fewer than four such Reference Treasury Dealer Quotations, the average
of all such Reference Treasury Dealer Quotations.
"Telerate Page 500" means the display designated as "Telerate Page 500" on
Dow Jones Markets Limited (or such other page as may replace Telerate Page 500
on such service) or such other service displaying the offer prices specified in
clause (a) of the definition of Comparable Treasury Price as may replace Dow
Jones Markets Limited.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer, the offer price for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) for settlement
on the Remarketing Date, quoted in writing to the Remarketing Dealer by such
Reference Treasury Dealer by 3:30 p.m. on the Determination Date.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in The City of New York (which may include the Remarketing Dealer)
selected by the Remarketing Dealer.
5. Repurchase. If the Remarketing Dealer (i) does not elect to exercise its
right to a mandatory tender of the Drs., (ii) shall not have received by the
required time on the Determination Date any firm, committed bids to purchase all
of the Drs. in accordance with Section 4 of this Security or (iii) for any other
reason does not purchase all of the Drs. on the Remarketing Date, then the
Company shall repurchase on the Remarketing Date, at a price equal to 100% of
the principal amount of the Drs. plus all accrued interest, if any, on the Drs.
to (but excluding) the Remarketing Date, any Drs. that have not been purchased
by the Remarketing Dealer on the Remarketing Date.
6. Redemption.
R-4
<PAGE>
(a) On the Remarketing Date. If the Remarketing Dealer has elected to
remarket the Drs. on the Remarketing Date, the Company shall have the right to
redeem the Drs., in whole but not in part, from the Remarketing Dealer on the
Remarketing Date at a redemption price equal to the greater of (i) 100% of the
aggregate principal amount of the Drs. and (ii) the Dollar Price, by giving
written notice of such redemption to the Remarketing Dealer no later than
(x) the Business Day immediately prior to the Determination Date or
(y) if fewer than three Reference Corporate Dealers submit firm,
committed bids for all outstanding Drs. to the Remarketing Dealer on the
Determination Date in accordance with Section 4 of this Security,
immediately after the deadline set by the Remarketing Dealer for receiving
such bids has passed.
In either such case, the Company shall pay such redemption price for the Drs. in
same-day funds by wire transfer on the Remarketing Date to an account designated
by the Remarketing Dealer.
(b) Prior to or After the Remarketing Date. The Drs. may be redeemed at any
time prior to or after the Remarketing Date at the option of the Company, in
whole or in part, at a redemption price equal to the sum of (i) the principal
amount of the Drs. being redeemed plus accrued interest thereon to the
redemption date and (ii) the Make-Whole Amount, if any, with respect to such
Drs.
Notice of any such redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of the Drs. to be
redeemed. Unless the Company defaults in payment of the redemption price, on and
after the redemption date, interest will cease to accrue on the Drs. or portions
thereof called in connection with a redemption. If less than all the Drs. are to
be redeemed at the option of the Company, the Company will notify the Trustee at
least 45 days prior to the redemption date (or such shorter period as is
satisfactory to the Trustee) of the aggregate principal amount of Drs. to be
redeemed and their redemption date. The Trustee shall select, in such manner as
it shall deem fair and appropriate, the Drs. to be redeemed in whole or in part.
Drs. may be redeemed in part in the minimum authorized denomination of the Drs.
or in any integral multiple thereof.
"Make-Whole Amount" means the excess, if any, of (i) the aggregate present
value as of the date of such redemption of each dollar of principal being
redeemed and the amount of interest (exclusive of interest accrued to the date
of redemption) that would have been payable in respect of such dollar if such
redemption had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date such notice of redemption is given)
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<PAGE>
from the applicable Principal Repayment Date, over (ii) the aggregate principal
amount of the respective Drs. being redeemed.
"Principal Repayment Date" means the date on which all principal and
interest in respect of the Drs. would have been payable to a holder if such
redemption had not been made, namely (i) in the case of a redemption of Drs. at
any time prior to the Remarketing Date, the Remarketing Date, and (ii) in the
case of a redemption of Drs. at any time after the Remarketing Date, the Stated
Maturity Date.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the yields
under the respective headings "This Week" and "Last Week" published in the
Statistical Release most recently published prior to the date of determination
under the caption "Treasury Constant Maturities" for the maturity (rounded to
the nearest month) corresponding to the remaining life to the applicable
Principal Repayment Date, as of the redemption date, of the principal being
redeemed. If no maturity set forth under such heading exactly corresponds to the
maturity of such principal, yields for the two published maturities most closely
corresponding to the maturity of such principal shall be calculated pursuant to
the immediately preceding sentence, and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line basis, rounding
in each of the relevant periods to the nearest month.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively-traded United States government
securities adjusted to constant maturities, or, if such statistical release is
not published at the time of any determination under the terms of the Drs., then
such other reasonably comparable index which shall be designated by the Company.
7. Certain Covenants. The Indenture restricts the Company's ability to
merge, consolidate or sell substantially all of its assets. In addition, the
Company is obliged to abide by certain covenants, including covenants limiting
the amount of indebtedness it may incur, a covenant compelling it to disclose
certain financial information, covenants requiring it to maintain its material
properties and adequate insurance thereon, and a covenant requiring it to pay or
discharge all taxes, all as more fully described in the Indenture. All of such
covenants are subject to the covenant defeasance procedures outlined in the
Indenture.
8. Effect of Event of Default. If an Event of Default shall have occurred
and be continuing under the Indenture, the principal hereof may be declared, and
upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
9. Tax Treatment; Agreement to Tender. The Company and the holders of this
Security (and each holder of a beneficial interest herein) by accepting this
Security, agree
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to treat the Drs. as fixed rate debt instruments that mature on the Remarketing
Date for United States Federal income tax purposes. Furthermore, each holder of
this Security irrevocably agrees that this Security shall automatically be
tendered to the Remarketing Dealer if the Remarketing Dealer elects to remarket
the Securities on the terms and conditions set forth herein.
10. Amendments and Waivers. Modifications and amendments of the Indenture
will be permitted to be made only with the consent of the holders of not less
than a majority in principal amount of all outstanding Debt Securities issued
under the Indenture that are affected by such modification or amendment;
provided, however, that no such modification or amendment may, without the
consent of the holder of each such Debt Security affected thereby, (a) change
the stated maturity of the principal of, or any installment of interest (or
premium or Make-Whole Amount, if any) on, any such Debt Security; (b) reduce the
principal of, or the rate or amount of interest on, or any premium or Make-Whole
Amount payable on redemption of, any such Debt Security, or reduce the amount of
principal of an Original Issue Discount security that would be due and payable
upon declaration of acceleration of the maturity thereof or would be provable in
bankruptcy, or adversely affect any right of repayment of the holder of any such
Debt Security; (c) change the place of payment, or the coin or currency, for
payment of principal of, premium or Make-Whole Amount, if any, or interest on
any such Debt Security; (d) impair the right to institute suit for the
enforcement of any payment on or with respect to any such Debt Security; (e)
reduce the above-stated percentage of outstanding Debt Securities of any series
necessary to modify or amend the Indenture, to waive compliance with certain
provisions thereof or certain defaults and consequences thereunder or to reduce
the quorum or voting requirements set forth in the Indenture; (f) change the
currency or currency unit in which any Debt Security or any premium or interest
thereon is payable; or (g) modify any of the foregoing provisions or any of the
provisions relating to the waiver of certain past defaults or certain covenants,
except to increase the required percentage to effect such action or to provide
that certain other provisions may not be modified or waived without the consent
of the holder of such Debt Security.
The holders of a majority in aggregate principal amount of the outstanding
Debt Securities of each series may, on behalf of all holders of Debt Securities
of that series, waive, insofar as that series is concerned, compliance by the
Company with certain restrictive covenants of the applicable Indenture.
Modifications and amendments of the Indenture will be permitted to be made
by the Company and the Trustee without the consent of any holder of Debt
Securities for any of the following purposes: (a) to evidence the succession of
another person to the Company as obligor under the Indenture; (b) to add to the
covenants of the Company for the benefit of the holders of all or any series of
Debt Securities or to surrender any right or power conferred upon the Company in
the Indenture; (c) to add events of default for the benefit of the holders of
all or any series of Debt Securities; (d) to add or change any provisions of the
Indenture to facilitate the issuance of, or to liberalize certain terms of, Debt
Securities in bearer form, or to
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permit or facilitate the issuance of Debt Securities in uncertificated form,
provided that such action shall not adversely affect the interests of the
holders of the Debt Securities of any series in any material respect; (e) to
change or eliminate any provisions of the Indenture, provided that any such
change or elimination shall become effective only when there are no Debt
Securities outstanding of any series created prior thereto which are entitled to
the benefit of such provision; (f) to secure the Debt Securities; (g) to
establish the form or terms of Debt Securities of any series; (h) to provide for
the acceptance of appointment by a successor Trustee or facilitate the
administration of the trusts under the Indenture by more than one Trustee; (i)
to cure any ambiguity, defect or inconsistency in the Indenture, provided that
such action shall not adversely affect the interests of holders of Debt
Securities of any series issued under the Indenture; or (j) to supplement any of
the provisions of the Indenture to the extent necessary to permit or facilitate
defeasance and discharge of any series of such Debt Securities, provided that
such action shall not adversely affect the interests of the holders of the
outstanding Debt Securities of any series in any material respect.
11. Denominations, Transfer and Exchange. (a) The Securities are issuable
in registered form without coupons in denominations of $1,000 and any integral
multiple thereof.
(b) Where certificated Securities are presented to at the corporate trust
offices of the Trustee or other transfer agent designated by the Company for
such purpose with a request to register their transfer or to exchange them for
an equal principal amount of Securities of other authorized denominations, the
Trustee or other transfer agent shall register the transfer or make the exchange
if its requirements for such transactions are met. The Company will not make any
charge for any registration of transfer or exchange but may require the payment
by the party requesting such registration of transfer or exchange of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
(c) Neither the Company nor any Trustee shall be required to (a) issue,
register the transfer of or exchange any Securities during a period beginning at
the opening of business 15 days before the selection of any Securities for
redemption and ending at the close of business on the day of mailing of the
notice of redemption; (b) register the transfer of or exchange any Security, or
portion thereof, so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part; or (c) issue,
register the transfer of or exchange any Security that has been surrendered for
repayment at the option of the holder, except the portion, if any, of such
Security not to be so repaid.
12. No Liability of Certain Persons. No part, present or future
stockholder, employee, officer or director of the Company or any successor
thereof shall have any liability for any obligation, covenant or agreement of
the Company contained under this Security or the Indenture. Each holder by
accepting this Security waives and releases all such liability. This waiver and
release are part of the consideration for the issue of this Security.
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13. Governing Law. The laws of the State of New York govern the Indenture
and this Security.
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto:
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PLEASE INSERT TAXPAYER
IDENTIFICATION NUMBER OF ASSIGNEE
- -------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
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the within Security of TriNet Corporate Realty Trust, Inc. and all rights
thereunder and hereby irrevocably constitutes and appoints ________________
attorney to transfer said Security on the books of the Company, with full power
of substitution in the premises
Dated: ___________________________________________
Signature
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME
AS WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. THE SIGNATURE(S) SHOULD BE
GUARANTEED BY A COMMERCIAL BANK OR TRUST COMPANY, A MEMBER ORGANIZATION OF A
NATIONAL STOCK EXCHANGE OR BY SUCH OTHER ENTITY WHOSE SIGNATURE IS ON FILE WITH
AND ACCEPTABLE TO THE TRANSFER AGENT.
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