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8-K FOR CP LIMITED PARTNERSHIP
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
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December 23, 1997
(Date of Report (Date of Earliest Event Reported))
CP LIMITED PARTNERSHIP
(Exact Name of Registrant as Specified in Its Charter)
Maryland 033-85492 38-3140664
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification Number)
6430 So. Quebec Street, Englewood, Colorado 80111
(Address of Principal Executive Offices) (Zip Code)
(303) 741-3707
(Registrant's Telephone Number, Including Area Code)
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Item 5. Other Events
The purpose of the filing of this current report on Form 8-K by CP
Limited Partnership (the "Registrant") is to include certain additional
exhibits to the Registrant's Registration Statement on Form S-3 (No.
333-4544-01) (the "Registration Statement") filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended. The Exhibit
numbers and Exhibits set forth below correspond to the Exhibit numbers and
Exhibits included in the Registration Statement.
Item 7. Exhibits
Exhibit No. Description of Document
- ---------- -----------------------
1.1 Form of Underwriting Agreement between Registrant, Chateau
Communities, Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, PaineWebber Incorporated and A.G. Edwards &
Sons Inc.
4.5 Form of Indenture
4.5.1 Form of Supplemental Indenture
4.6 Form of MOPPRS SM
4.7 Form of the Remarketing Agreement between Registrant,
Chateau Communities, Inc. and Merrill Lynch, Pierce,
Fenner & Smith
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
By: /s/ TAMARA D. FISCHER
-----------------------
Tamara D. Fischer
Chief Financial Officer
Dated: December 23, 1997 Chateau Communications Inc.
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EXHIBIT 1.1
CHATEAU COMMUNITIES, INC.
CP LIMITED PARTNERSHIP
UNDERWRITING AGREEMENT
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Table of Contents
SECTION 1. Representations and Warranties................................. 4
(a) Representations and Warranties by the Company and the
Operating Partnership.......................................... 4
(1) Compliance with Registration Requirements................. 5
(2) Incorporated Documents.................................... 5
(3) Independent Accountants................................... 5
(4) Financial Statements...................................... 6
(5) Pro Forma Financial Statements............................ 6
(6) No Material Adverse Change in Business.................... 6
(7) Good Standing of the Company.............................. 7
(8) Operating Partnership and Subsidiaries.................... 7
(9) Capitalization............................................ 8
(10) Units..................................................... 9
(11) Authorization of this Agreement and Terms
Agreement by the Company................................. 9
(12) Authorization of this Agreement and the Terms
Agreement by the Operating Partnership................... 9
(13) Authorization of Common Stock............................. 9
(14) Authorization of Preferred Stock.......................... 9
(15) Authorization of Depositary Shares........................10
(16) Authorization of Warrants.................................10
(17) Authorization of Debt Securities.......................... 10
(18) Authorization of the Underlying Securities................ 11
(19) Authorization of the Deposit Agreement and the
Warrant Agreement.........................................11
(20) Authorization of the Indenture............................11
(21) Authorization of the Remarketing Agreement................ 12
(22) Descriptions of the Underwritten Securities,
Underlying Securities, Indenture, Remarketing
Agreement, Deposit Agreement and Warrant
Agreement................................................ 12
(23) Absence of Defaults and Conflicts......................... 12
(24) REIT Qualification........................................ 13
(25) Absence of Proceedings.................................... 13
(26) Accuracy of Exhibits...................................... 14
(27) Absence of Further Requirements........................... 14
(28) Possession of Intellectual Property....................... 14
(29) Possession of Licenses and Permits........................ 14
(30) Registration Rights Agreements............................ 15
(31) Title to Property......................................... 15
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(32) Title Insurance............................................16
(33) Investment Company Act.................................... 16
(34) Environmental Laws........................................ 16
(b) Officers' Certificates.......................................... 17
SECTION 2. Sale and Delivery to Underwriters; Closing...................... 17
(a) Underwritten Securities......................................... 17
(b) Option Underwritten Securities.................................. 17
(c) Payment......................................................... 18
(d) Denominations; Registration..................................... 18
SECTION 3. Covenants of the Company and the Operating
Partnership.................................................... 19
SECTION 4. Payment of Expenses............................................. 22
(a) Expenses......................................................... 22
(b) Termination of Agreement......................................... 23
SECTION 5. Conditions of Underwriters' Obligations......................... 23
(a) Effectiveness of Registration Statement......................... 23
(b) Opinion of Counsel for the Company and the
Operating Partnership........................................... 23
(c) Opinion of Counsel for the Underwriters......................... 23
(d) Additional Opinion.............................................. 23
(e) Officers' Certificate........................................... 24
(f) Accountant's Comfort Letter..................................... 25
(g) Bring-down Comfort Letter....................................... 25
(h) Comfort Letter for Acquisitions................................. 25
(i) Ratings......................................................... 25
(j) Approval of Listing............................................. 26
(k) No Objection.................................................... 26
(l) Lock-up Agreements.............................................. 26
(m) Over-Allotment Option........................................... 26
(n) Additional Documents............................................ 27
(o) Termination of Terms Agreement.................................. 27
SECTION 6. Indemnification................................................. 27
(a) Indemnification of Underwriters................................. 27
(b) Indemnification of Company, Operating Partnership,
Directors and Officers......................................... 28
(c) Actions against Parties; Notification........................... 29
SECTION 7. Contribution.................................................... 29
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery............................................... 31
SECTION 9. Termination..................................................... 31
(a) Underwriting Agreement.......................................... 31
(b) Terms Agreement................................................. 31
(c) Liabilities..................................................... 32
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SECTION 10. Default by One or More of the Underwriters..................... 32
SECTION 11. Notices........................................................ 33
SECTION 12. Parties........................................................ 33
SECTION 13. Governing Law And Time......................................... 33
SECTION 14. Effect of Headings............................................. 33
EXHIBIT A: Terms Agreement..........................................A-1
EXHIBIT B: Form of Opinion of Counsel for the Company
and the Operating Partnership to be Delivered
Pursuant to Section 5(b).................................B-1
EXHIBIT C: Form of Accountant's Comfort Letter Pursuant
to Section 5(f)..........................................C-1
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CHATEAU COMMUNITIES, INC.
(a Maryland corporation)
CP LIMITED PARTNERSHIP
(a Maryland limited partnership)
Common Stock,
Preferred Stock,
Depositary Shares Representing Preferred Stock,
Warrants
and
Debt Securities
UNDERWRITING AGREEMENT
December 18, 1997
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Chateau Communities, Inc., a Maryland corporation (the "Company"),
proposes to issue and sell up to $200,000,000 aggregate initial public offering
price of its shares of common stock, par value $.01 per share (the "Common
Stock"), shares of preferred stock, par value $.01 per share (the "Preferred
Stock"), depositary shares representing fractional interests in the Preferred
Stock (the "Depositary Shares") or warrants (the "Warrants") to purchase Common
Stock, and CP Limited Partnership, a Maryland limited partnership (the
"Operating Partnership"), proposes to issue and sell up to $120,000,000
aggregate initial public offering price of senior or subordinated debt
securities (the "Debt Securities"), or any combination thereof, from time to
time, in or pursuant to one or more offerings on terms to be determined at the
time of sale.
The Preferred Stock will be issued in one or more series and each series
of Preferred Stock may vary, as applicable, as to the title, specific number of
shares, rank, stated value, liquidation preference, dividend rate or rates (or
method of calculation), dividend payment dates,
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redemption provisions, sinking fund requirements, conversion provisions (and
terms of the related Underlying Securities (as defined below)) and any other
variable terms as set forth in the applicable articles supplementary of the
Company (the "Articles Supplementary") relating to such series of Preferred
Stock. If shares of the Preferred Stock are to be offered in the form of
Depositary Shares, the shares of Preferred Stock will, when issued, be deposited
by the Company against delivery of depositary receipts (the "Depositary
Receipts") to be issued under a deposit agreement (the "Deposit Agreement"), to
be entered into among the Company, a depositary institution (the "Depositary")
and the holders from time to time of the Depositary Receipts issued thereunder.
The Depositary Receipts will evidence the Depositary Shares and each Depositary
Share will represent a fraction of a share of Preferred Stock. The Preferred
Stock, together, if applicable, with the Depositary Shares are hereinafter
referred to as the "Preferred Stock".
The Warrants are to be issued under warrant agreements (each, a "Warrant
Agreement"), between the Company and a bank or trust company, as warrant agent
(the "Warrant Agent"). The Warrants may have varying designations, expiration
dates, selling prices, redemption terms, if any, exchange terms, if any,
conversion terms and other specific terms as set forth in the applicable Terms
Agreement relating thereto.
The Debt Securities will be issued in one or more series under an
indenture (the "Indenture") between the Operating Partnership and The First
National Bank of Chicago, as trustee (the "Trustee"). Each series of Debt
Securities may vary, as applicable, as to title, aggregate principal amount,
rank, interest rate or formula and timing of payments thereof, stated maturity
date, redemption and/or repayment provisions, sinking fund requirements,
conversion provisions (and terms of the related Underlying Securities) and any
other variable terms established by or pursuant to the Indenture.
As used herein, "Securities" shall mean the Common Stock, Preferred Stock,
Depositary Shares, Warrants, Debt Securities, or any combination thereof,
initially issuable by the Company or the Operating Partnership and "Underlying
Securities" shall mean the Common Stock issuable upon exercise of the Warrants
or conversion of the Preferred Stock or the Depositary Shares or the Preferred
Stock issuable upon conversion of the Depositary Shares, as applicable.
Whenever the Company or the Operating Partnership determines to make an
offering of Securities through Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), or through an underwriting
syndicate managed by Merrill Lynch, the Company will enter into an agreement
(each, a "Terms Agreement") providing for the sale of such Securities to, and
the purchase and offering thereof by, Merrill Lynch and such other underwriters,
if any, selected by Merrill Lynch (the "Underwriters", which term shall include
Merrill Lynch, whether acting as sole Underwriter or as a member of an
underwriting syndicate, as well as any Underwriter substituted pursuant to
Section 10 hereof). The Terms Agreement relating to the offering of Securities
shall specify the number or aggregate principal amount, as the case may be, of
Securities to be initially issued (the "Initial Underwritten Securities"), the
name of each Underwriter participating in such offering (subject to substitution
as provided in
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Section 10 hereof) and the name of any Underwriter other than Merrill Lynch
acting as co-manager in connection with such offering, the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities which
each such Underwriter severally agrees to purchase, whether such offering is on
a fixed or variable price basis and, if on a fixed price basis, the initial
offering price, the price at which the Initial Underwritten Securities are to be
purchased by the Underwriters, the form, time, date and place of delivery and
payment of the Initial Underwritten Securities and any other material variable
terms of the Initial Underwritten Securities, as well as the material variable
terms of any related Underlying Securities. In addition, if applicable, such
Terms Agreement shall specify whether the Company or the Operating Partnership
has agreed to grant to the Underwriters an option to purchase additional
Securities to cover over-allotments, if any, and the number or aggregate
principal amount, as the case may be, of Securities subject to such option (the
"Option Underwritten Securities"). As used herein, the term "Underwritten
Securities" shall include the Initial Underwritten Securities and all or any
portion of any Option Underwritten Securities. The Terms Agreement, which shall
be substantially in the form of Exhibit A hereto, may take the form of an
exchange of any standard form of written telecommunication between the Company
and the Operating Partnership and Merrill Lynch, acting for itself and, if
applicable, as representative of any other Underwriters. Each offering of
Underwritten Securities through Merrill Lynch as sole Underwriter or through an
underwriting syndicate managed by Merrill Lynch will be governed by this
Agreement, as supplemented by the applicable Terms Agreement. This Agreement, as
supplemented by the applicable Terms Agreement, also may relate to an offering
of Securities managed by such other Underwriters as may be specified in the
Terms Agreement.
The Company and the Operating Partnership have filed with the Securities
and Exchange Commission (the "Commission") a registration statement on Form S-3
(Nos. 333-4544 and 333- 4544-01) for the registration of the Securities and the
Underlying Securities under the Securities Act of 1933, as amended (the "1933
Act"), and the offering thereof from time to time in accordance with Rule 415 of
the rules and regulations of the Commission under the 1933 Act (the "1933 Act
Regulations"), and the Company and the Operating Partnership have filed such
post-effective amendments thereto as may be required prior to the execution of
the applicable Terms Agreement. Such registration statement (as so amended, if
applicable) has been declared effective by the Commission and each Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"), and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations"). Such registration statement (as so amended, if
applicable), including the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the 1933 Act Regulations (the "Rule 430A
Information") or Rule 434(d) of the 1933 Act Regulations (the "Rule 434
Information"), is referred to herein as the "Registration Statement"; and the
final prospectus and the final prospectus supplement relating to the offering of
the Underwritten Securities, in the form first furnished to the Underwriters by
the Company or the Operating Partnership, as the case may be, for use in
connection with the offering of the Underwritten Securities, are collectively
referred to herein as the "Prospectus"; provided, however, that all references
to the "Registration Statement" and the "Prospectus" shall also be deemed to
include all documents incorporated therein by reference pursuant to the
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Securities Exchange Act of 1934, as amended (the "1934 Act"), prior to the
execution of the applicable Terms Agreement; provided, further, that if the
Company and the Operating Partnership file a registration statement with the
Commission pursuant to Rule 462(b) of the 1933 Act Regulations (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to
"Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement; and provided, further, that if the Company or the
Operating Partnership, as the case may be, elects to rely upon Rule 434 of the
1933 Act Regulations, then all references to "Prospectus" shall also be deemed
to include the final or preliminary prospectus and the applicable term sheet or
abbreviated term sheet (the "Term Sheet"), as the case may be, in the form first
furnished to the Underwriters by the Company in reliance upon Rule 434 of the
1933 Act Regulations, and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet. A "preliminary prospectus"
shall be deemed to refer to any prospectus used before the Registration
Statement became effective and any prospectus that omitted, as applicable, the
Rule 430A Information, the Rule 434 Information or other information to be
included upon pricing in a form of prospectus filed with the Commission pursuant
to Rule 424(b) of the 1933 Act Regulations, that was used after such
effectiveness and prior to the execution and delivery of the applicable Terms
Agreement. For purposes of this Agreement, all references to the Registration
Statement, Prospectus, Term Sheet or preliminary prospectus or to any amendment
or supplement to any of the foregoing shall be deemed to include any copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" (or other
references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be; and all references in this Agreement to amendments or
supplements to the Registration Statement, Prospectus or preliminary prospectus
shall be deemed to mean and include the filing of any document under the 1934
Act which is incorporated by reference in the Registration Statement, Prospectus
or preliminary prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Operating
Partnership. The Company and the Operating Partnership, jointly and severally,
represent and warrant to Merrill Lynch, as of the date hereof, and to each
Underwriter named in the applicable Terms Agreement, as of the date thereof, as
of the Closing Time (as defined below) and, if applicable, as of each Date of
Delivery (as defined below) (in each case, a "Representation Date"), as follows:
(1) Compliance with Registration Requirements. The Registration
Statement and the Prospectus, at the time a preliminary prospectus was
first provided for use to the Underwriters and at each time thereafter on
which any amendment to the Registration
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Statement becomes effective and at each time thereafter on which each of
the Company and the Operating Partnership filed an Annual Report on Form
10-K with the Commission, complied, and as of each Representation Date
will comply, in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations; the Registration Statement, at the time
the Registration Statement became effective and at each time thereafter on
which each of the Company and the Operating Partnership filed an Annual
Report on Form 10-K with the Commission, did not, and at each time
thereafter on which any amendment to the Registration Statement becomes
effective or each of the Company or the Operating Partnership files an
Annual Report on Form 10-K with the Commission and as of each
Representation Date, will not, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the
Prospectus, as of the date hereof, does not, and as of each Representation
Date will not, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the representations and warranties in
this subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through Merrill Lynch expressly for use in the Registration
Statement or Prospectus.
(2) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the Prospectus
(the "Incorporated Documents"), at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective and as
of the applicable Representation Date or Closing Time (as defined herein)
or during the period specified in Section 3(f) hereof, did not and will
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included or incorporated by
reference in the Registration Statement and the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(4) Financial Statements. The historical consolidated financial
statements of each of the Operating Partnership, the Company and ROC
Communities, Inc. ("ROC Communities"), including the related notes and
schedules thereto, included or incorporated by reference in the
Registration Statement and the Prospectus present fairly
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the financial position of the Operating Partnership, the Company and ROC
Communities, respectively, as at the dates indicated and the results of
operations for the periods specified. If applicable, the historical
financial information including the notes thereto for properties or other
assets included in or incorporated by reference into the Registration
Statement and Prospectus present fairly the stated financial information
for such specific property or asset. Except as otherwise stated in the
Registration Statement, said historical consolidated financial statements
of the Operating Partnership, the Company and ROC Communities, and, if
applicable, the specific properties or other assets, have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved, and all adjustments
necessary for a fair presentation of results for such periods have been
made. The supporting schedules included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the
information required to be stated therein; and the selected financial data
(both historical and pro forma) included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with the related financial statements presented therein to the extent
derived from such financial statements.
(5) Pro Forma Financial Statements. The unaudited pro forma
condensed consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus present fairly
the pro forma financial position of the Company and the Operating
Partnership as of the dates indicated and the results of their operations
for the periods specified; and such unaudited pro forma financial
statements have been prepared in accordance with generally accepted
accounting principles applied on a basis substantially consistent with the
audited financial statements of the Company and the Operating Partnership
included or incorporated by reference in the Registration Statement and
the Prospectus, the assumptions on which such pro forma financial
statements have been prepared are reasonable and are set forth in the
notes thereto, and such pro forma financial statements have been prepared,
and the pro forma adjustments set forth therein have been applied, in
accordance with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations, and such pro forma adjustments have been
properly applied to the historical amounts in the compilation of such
statements.
(6) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (a) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise or the Operating Partnership
and its subsidiaries considered as one enterprise, or any of the real
property or improvements thereon owned by the Company, the Operating
Partnership or any of their respective subsidiaries (each individually, a
"Property" and collectively, the "Properties"), whether or not arising in
the ordinary course of business, (b) no material casualty loss or
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material condemnation or other material adverse event with respect to any
of the Properties has occurred, (c) there have been no transactions
entered into or acquisitions by the Company, the Operating Partnership or
any of their respective subsidiaries, other than those in the ordinary
course of business or disclosed in the Prospectus, which are material with
respect to the Company and its subsidiaries considered as one enterprise
or the Operating Partnership and its subsidiaries considered as one
enterprise, and (d) except for regular quarterly dividends on the
Company's common stock, there has been no dividend or distribution of any
kind declared, paid or made by the Company or any of its subsidiaries on
any class of its capital stock or by the Operating Partnership or any of
its subsidiaries with respect to its partnership interests or any class of
its capital stock. As used in this Agreement, the term subsidiary as it
relates to the Operating Partnership includes any corporation, limited
liability company, limited or general partnership, joint venture or other
entity through which the Operating Partnership owns a controlling
interest, either directly or indirectly, in a Property.
(7) Good Standing of the Company. 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, lease and operate its Properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under this Agreement and the Terms Agreement and the Company
is duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or to be in
good standing would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise
or the Operating Partnership and its subsidiaries considered as one
enterprise or the Properties, collectively; and, except for the Operating
Partnership, the Windsor Corporation, a California corporation, and its
parent and other corporations that hold 1% or smaller interests in
subsidiary partnerships, the Company owns no material amounts of stock or
other beneficial interest in any corporation, limited liability company,
partnership, joint ventures or other business entity.
(8) Operating Partnership and Subsidiaries. The Amended and Restated
Agreement of Limited Partnership of the Operating Partnership (the
"Partnership Agreement") has been duly and validly authorized, executed
and delivered by the Company and is a valid and binding agreement,
enforceable against the Company in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally
and by general principles of equity. To the Company's knowledge, the
Partnership Agreement has been duly executed and delivered by the other
parties thereto and is a valid and binding agreement, enforceable against
such parties in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting creditors' rights generally and by general principles of
equity. The Operating Partnership
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and each of its "significant subsidiaries" (as such term is defined in
Rule 1-02 of Regulation S-X promulgated under the 1933 Act) (each, a
"Subsidiary" and collectively, the "Subsidiaries") has been duly formed
and is validly existing as a limited partnership, limited liability
company or corporation, as the case may be, in good standing under the
laws of its state of organization with partnership, limited liability
company or corporate power and authority, as the case may be, to own,
lease and operate its properties, to conduct the business in which it is
engaged or proposes to engage as described in the Prospectus and to enter
into and perform its obligations under this Agreement. The Operating
Partnership and each of its Subsidiaries is duly qualified or registered
as a foreign partnership, limited liability company or corporation, as the
case may be, and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where
the failure to so qualify or register would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise or the Operating Partnership and its
subsidiaries considered as one enterprise or the Properties, collectively.
The Company owns, directly and through ROC Communities (the other general
partner of the Operating Partnership), an approximate 90% general partner
interest in the Operating Partnership. Except as otherwise stated in the
Prospectus, all of the issued and outstanding capital stock or other
ownership interests in each Subsidiary have been duly authorized and
validly issued, are fully paid and non-assessable and are owned by the
Company or the Operating Partnership, directly or indirectly, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity, except for security interests granted in respect of
indebtedness of the Company or the Operating Partnership or any of their
respective subsidiaries as described in the Prospectus and except for
security interests which would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company or any of its subsidiaries considered as
one enterprise or the Operating Partnership or any of its subsidiaries
considered as one enterprise or the Properties, collectively.
(9) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations, agreements, employee benefit plans, dividend reinvestment
plans, employee and director stock option plans or upon the exercise of
options or convertible securities referred to in the Prospectus); and such
shares of capital stock have been duly authorized and validly issued and
are fully paid and non-assessable and are not subject to preemptive or
other similar rights. The Company has duly reserved a sufficient number of
shares of Common Stock for issuance upon exchange of outstanding units of
limited partner interest in the Operating Partnership (the "Units").
(10) Units. The issued and outstanding Units have been duly
authorized and validly issued by the Operating Partnership and are fully
paid and non-assessable. The Units
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have been sold in compliance with all applicable laws (including, without
limitation, federal and state securities laws).
(11) Authorization of this Agreement and Terms Agreement by the
Company. The Company has the requisite corporate power and authority to
enter into this Agreement, the applicable Terms Agreement and the Delayed
Delivery Contracts (as defined below), if any, and this Agreement has
been, and as of each Representation Date, the applicable Terms Agreement
and the Delayed Delivery Contracts, if any, will have been, duly
authorized, executed and delivered by the Company.
(12) Authorization of this Agreement and the Terms Agreement by the
Operating Partnership. The Operating Partnership has the requisite
partnership power and authority to enter into this Agreement and the
applicable Terms Agreement and this Agreement has been, and as of each
Representation Date, the applicable Terms Agreement will have been, duly
authorized, executed and delivered by the Operating Partnership.
(13) Authorization of Common Stock. If the Underwritten Securities
being sold pursuant to this Agreement and the applicable Terms Agreement
include Common Stock, such Underwritten Securities have been, or as of the
date of such Terms Agreement will have been, duly authorized for issuance
and sale pursuant to this Agreement and such Terms Agreement; and the
Common Stock, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth in such Terms
Agreement or any Delayed Delivery Contract, will be validly issued, fully
paid and non-assessable and will not be subject to preemptive or other
similar rights. The form of stock certificate used to evidence the Common
Stock is in due and proper form and complies with all applicable legal
requirements.
(14) Authorization of Preferred Stock. If the Underwritten Securities
being sold pursuant to this Agreement and the applicable Terms Agreement
include Preferred Stock, such Underwritten Securities have been, or as of
the date of such Terms Agreement will have been, duly authorized by the
Company for issuance and sale pursuant to this Agreement and such Terms
Agreement. The Preferred Stock, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration therefor
specified in such Terms Agreement, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar
rights of any securityholder of the Company. The applicable Articles
Supplementary will be in full force and effect prior to the Closing Time.
The form of stock certificate used to evidence the Preferred Stock will be
in due and proper form and will comply with all applicable legal
requirements.
(15) Authorization of Depositary Shares. If the Underwritten
Securities being sold pursuant to this Agreement and the applicable Terms
Agreement include Depositary Shares, such Depositary Shares and the
deposit of the Preferred Stock in accordance with the Deposit Agreement
have been, or as of the date of such Terms Agreement will have
9
<PAGE> 14
been, duly authorized by the Company for issuance and sale pursuant to
this Agreement and such Terms Agreement. The Depositary Shares, when
issued and delivered by the Company pursuant to this Agreement against
payment of the consideration therefor specified in such Terms Agreement,
will be validly issued, fully paid and non-assessable and will not be
subject to preemptive or other similar rights of any securityholder of the
Company. Upon deposit by the Company of any Preferred Stock represented by
Depositary Shares with the Depositary and the execution and delivery of
the Depositary Receipts evidencing such Depositary Shares pursuant to the
terms of the Deposit Agreement, the persons in whose names such Depositary
Receipts are registered will be entitled to the proportional rights,
preferences and limitations of the Preferred Stock represented by the
Depositary Shares evidenced by such Depositary Receipts and to such other
rights as are granted to such registered holder in such Deposit Agreement.
(16) Authorization of Warrants. If the Underwritten Securities being
sold pursuant to this Agreement and the applicable Terms Agreement include
Warrants, such Underwritten Securities have been, or as of the date of
such Terms Agreement will have been, duly authorized for issuance and sale
pursuant to this Agreement and such Terms Agreement. The Warrants, when
duly executed, countersigned and delivered in the manner provided for in
the Warrant Agreement and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, will constitute valid and
binding obligations of the Company entitled to the benefits of the Warrant
Agreement and enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law); each registered holder thereof is
entitled to the benefits of the Warrant Agreement; and the Warrants shall
be exercisable for Common Stock in accordance with their terms and the
terms of the Warrant Agreement.
(17) Authorization of Debt Securities. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Debt
Securities, such Underwritten Securities have been, or as of the date of
such Terms Agreement will have been, duly authorized by the Operating
Partnership for issuance and sale pursuant to this Agreement and such
Terms Agreement. The Debt Securities, when issued and authenticated in the
manner provided for in the Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, will constitute
valid and binding obligations of the Operating Partnership, enforceable
against the Operating Partnership in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement thereof
10
<PAGE> 15
may be limited by requirements that a claim with respect to any Debt
Securities payable in a foreign or composite currency (or a foreign or
composite currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or by governmental authority to limit, delay or
prohibit the making of payments outside the United States. The Debt
Securities will be in the form contemplated by, and each registered holder
thereof is entitled to the benefits of, the Indenture.
(18) Authorization of the Underlying Securities. If applicable, the
Underlying Securities have been, or as of the date of the applicable Terms
Agreement will have been, duly authorized and reserved for issuance upon
such exercise or conversion by the Company and, when issued upon such
exercise or conversion, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar
rights of any securityholder.
(19) Authorization of the Deposit Agreement and the Warrant
Agreement. If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Depositary Shares or
Warrants, the applicable Deposit Agreement or the applicable Warrant
Agreement, as the case may be, has been, or prior to the issuance of the
Depositary Shares or the Warrants, as the case may be, will have been,
duly authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery thereof by the Depositary or the
Warrant Agent, as the case may be, will constitute a valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally or by general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(20) Authorization of the Indenture. If the Underwritten Securities
being sold pursuant to the applicable Terms Agreement include Debt
Securities, the Indenture has been, or prior to the issuance of the Debt
Securities thereunder will have been, duly authorized, executed and
delivered by the Operating Partnership and, assuming due authorization,
execution and delivery thereof by the Trustee, will constitute a valid and
binding agreement of the Operating Partnership, enforceable against the
Operating Partnership in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity
or at law). The Indenture has been duly qualified under the 1939 Act.
11
<PAGE> 16
(21) Authorization of the Remarketing Agreement. If the Underwritten
Securities being sold pursuant to the applicable Terms Agreement include
Debt Securities in the form of MandatOry Par Put Remarketed Securities*,
the Remarketing Agreement (as defined in the Prospectus) has been, or
prior to the issuance of the Debt Securities thereunder will have been,
duly authorized, executed and delivered by the Operating Partnership and
the Company and, assuming due authorization, execution and delivery
thereof by the Remarketing Dealer (as defined in the Prospectus), will
constitute a valid and binding agreement of the Operating Partnership and
the Company, enforceable against the Operating Partnership and the Company
in accordance with its terms.
(22) Descriptions of the Underwritten Securities, Underlying
Securities, Indenture, Remarketing Agreement, Deposit Agreement and
Warrant Agreement. The Underwritten Securities being sold pursuant to the
applicable Terms Agreement and, if applicable, the Indenture, Remarketing
Agreement, Deposit Agreement or Warrant Agreement, as of each
Representation Date, and any Underlying Securities, when issued and
delivered in accordance with the terms of the related Underwritten
Securities, will conform in all material respects to the statements
relating thereto contained in the Prospectus and will be in substantially
the form filed or incorporated by reference, as the case may be, as an
exhibit to the Registration Statement.
(23) Absence of Defaults and Conflicts. None of the Company, the
Operating Partnership or any of their respective subsidiaries is in
violation of its charter, by-laws, agreement of limited liability company,
agreement of limited partnership or other organizational documents or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other agreement or instrument to
which the Company, the Operating Partnership or any of their respective
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company, the Operating
Partnership or any of their respective subsidiaries is subject, except for
any such violation or default that would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise or the Operating Partnership and its
subsidiaries considered as one enterprise, and the execution, delivery and
performance of this Agreement, the applicable Terms Agreement, and if
applicable, the Indenture, Remarketing Agreement, Deposit Agreement or
Warrant Agreement, and the consummation of the transactions contemplated
herein and therein and compliance by the Company and the Operating
Partnership (with respect to this Agreement), each severally, with
obligations hereunder and thereunder have been duly authorized by all
necessary action, and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company, the Operating
Partnership or any of their
- ----------
"MandatOry Par Put Remarketed Securities(sm)" is a service mark owned by Merrill
Lynch & Co. Inc.
12
<PAGE> 17
respective subsidiaries pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company, the
Operating Partnership or any of their respective subsidiaries is a party
or by which any of them may be bound, or to which any of the property or
assets of the Company, the Operating Partnership or any of their
respective subsidiaries is subject, except for any such violation or
default that would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise
or the Operating Partnership and its subsidiaries considered as one
enterprise, nor will such action result in any violation of the charter,
by-laws, agreement of limited liability company, agreement of limited
partnership or other organizational documents of the Company, the
Operating Partnership or any of their respective subsidiaries or any
applicable law, administrative regulation or administrative or court
decree, except for any such violation or default that would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise or the Operating Partnership and
its subsidiaries considered as one enterprise.
(24) REIT Qualification. Commencing with the Company's first taxable
year ended December 31, 1993, the Company has been organized in conformity
with the requirements for qualification as a real estate investment trust
("REIT") under the Internal Revenue Code of 1986, as amended (the "Code"),
and the Company's method of operation will enable it to meet the
requirements for taxation as a REIT under the Code.
(25) Absence of Proceedings. Other than as disclosed or incorporated
by reference into the Prospectus, there is no action, suit or proceeding
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company or the Operating
Partnership threatened against or affecting the Company, the Operating
Partnership or any of their respective subsidiaries which is required to
be disclosed in the Prospectus (other than as disclosed therein), or which
might result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and the subsidiaries considered as one enterprise or the
Operating Partnership and its subsidiaries considered as one enterprise,
or which might materially and adversely affect the property or assets
thereof and the Properties, collectively, or which might materially and
adversely affect the consummation of this Agreement, the applicable Terms
Agreement or any applicable Indenture, Remarketing Agreement, Deposit
Agreement or Warrant Agreement, or the transactions contemplated herein or
therein; all pending legal or governmental proceedings to which the
Company, the Operating Partnership or any of their respective subsidiaries
is a party or of which any property or assets of the Company, the
Operating Partnership or any of their respective subsidiaries or the
Properties is subject which are not described in or incorporated by
reference into the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not
material; and there are no contracts or documents of the Company, the
Operating Partnership or
13
<PAGE> 18
any of their respective subsidiaries which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(26) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(27) Absence of Further Requirements. No authorization, approval or
consent of any court or governmental authority or agency is required that
has not been obtained in connection with the consummation by the Company
or the Operating Partnership of the transactions contemplated by this
Agreement or the applicable Terms Agreement, and, if applicable, the
Indenture, Remarketing Agreement, Deposit Agreement or Warrant Agreement,
except such as may be required under the 1933 Act or the 1933 Act
Regulations, the 1934 Act or the 1934 Act Regulations, the 1939 Act or the
1939 Act Regulations, state securities laws, real estate syndication laws
or under the rules and regulations of the National Association of
Securities Dealers, Inc. (the "NASD").
(28) Possession of Intellectual Property. The Company, the Operating
Partnership and their respective subsidiaries are not required to own or
possess any trademarks, service marks, trade names or copyrights in order
to conduct the business to be operated by them.
(29) Possession of Licenses and Permits. Each of the Company, the
Operating Partnership and their respective subsidiaries possess, or have
made application for, such certificates, authorities or permits issued by
the appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct the businesses to be conducted by it, except for such
certificates, authorities or permits, the failure to obtain, maintain or
possess, would not materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise
or the Operating Partnership and its subsidiaries considered as one
enterprise; and the Company, the Operating Partnership and any of their
respective subsidiaries have not received any written notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially
and adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise or the Operating Partnership and
its subsidiaries considered as one enterprise.
(30) Registration Rights Agreements. There are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration
14
<PAGE> 19
Statement or otherwise registered by the Company or the Operating
Partnership under the 1933 Act.
(31) Title to Property. (a) The Operating Partnership or its
subsidiaries, as the case may be, has good and marketable title to all
items of real property owned by them, in each case free and clear of all
liens, encumbrances, claims, security interests and defects, other than
those referred to in the Prospectus, mortgages on real property, and those
that would not have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise or the
Operating Partnership and its subsidiaries considered as one enterprise;
(b) all liens, charges, encumbrances, claims, or restrictions on or
affecting the properties and assets owned by the Operating Partnership or
any of its subsidiaries which are required to be disclosed in the
Prospectus are disclosed therein; (c) except as disclosed in the
Prospectus, none of the Company, the Operating Partnership or any of their
respective subsidiaries, or, to the best of the knowledge of the Company
and the Operating Partnership, any lessee under a lease relating to any of
the Properties, is in default under any of the leases relating to the
Properties and neither the Company nor the Operating Partnership knows of
any event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases, except such
defaults that would not have a material adverse effect on the condition,
financial or otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise
or the Operating Partnership and its subsidiaries considered as one
enterprise; (d) no tenant under any of the leases pursuant to which the
Company, the Operating Partnership or any of their respective subsidiaries
leases any of its real property or improvements has an option to purchase
the premises demised under such lease; (e) each of the Properties is in
compliance with all applicable codes and zoning laws and regulations,
except for such failures to comply which would not individually or in the
aggregate have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise or the
Operating Partnership and its subsidiaries considered as one enterprise;
and (f) neither the Company nor the Operating Partnership has knowledge of
any pending or threatened condemnation, zoning change, or other proceeding
or action, except such proceedings or actions that would not have a
material adverse effect on the condition, financial or otherwise, or on
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise or the Operating Partnership
and its subsidiaries considered as one enterprise.
(32) Title Insurance. The Operating Partnership or its subsidiaries
have obtained or have the benefit of title insurance on all the Properties
described in the Prospectus as owned by the Operating Partnership or its
subsidiaries in an amount as is customary for companies engaged in
business similar to the Operating Partnership or its subsidiaries.
15
<PAGE> 20
(33) Investment Company Act. The Company, the Operating Partnership
and any of their respective subsidiaries are not, and upon the issuance
and sale of the Underwritten Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(34) Environmental Laws. Except as disclosed in the Prospectus, or
the Incorporated Documents, each of the Company and the Operating
Partnership has no knowledge of (a) the unlawful presence of any
substance, material or waste which is regulated by any federal, state or
local governmental or quasi-governmental authority, including, without
limitation, (i) any substance, material or waste defined, used or listed
as a "hazardous waste", "extremely hazardous waste", "restricted hazardous
waste", "hazardous substance", "hazardous material", "toxic substance" or
other similar terms as defined or used in any Environmental Law (as
defined below), (ii) any petroleum products, asbestos, polychlorinated
biphenyls, lead-based paint, flammable explosives or radioactive materials
and (iii) any additional substances or materials which are hazardous or
toxic substances under any Environmental Law relating to the Properties
(collectively, "Hazardous Materials") on any of the Properties or of (b)
any spill, release, discharge or disposal of Hazardous Materials that have
occurred or are presently occurring at, from or onto any of the Properties
or any properties near or adjacent to the Properties, which presence or
occurrence would materially adversely affect the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise or the Operating
Partnership and its subsidiaries considered as one enterprise. Except as
disclosed in the Prospectus, in connection with the construction on or
operation and use of the Properties, the Company and the Operating
Partnership represent that, as of each Representation Date, each of the
Company and the Operating Partnership has no knowledge of any material
failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and
judicial orders relating to the use, generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous Materials
(collectively, "Environmental Laws") that would have a material adverse
effect on the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise or the Operating Partnership and its
subsidiaries considered as one enterprise.
(b) Officers' Certificates. Any certificate signed by any officer of the Company
in such capacity or as general partner of the Operating Partnership or any of
its subsidiaries and delivered to any Underwriter or to counsel for the
Underwriters in connection with the offering of the Underwritten Securities
shall be deemed a representation and warranty by the Company or the Operating
Partnership, as the case may be, to each Underwriter as to the matters covered
thereby on the date of such certificate and, unless subsequently amended or
supplemented, at each Representation Date subsequent thereto.
16
<PAGE> 21
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Underwritten Securities. The several commitments of the Underwriters
to purchase the Underwritten Securities pursuant to the applicable Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties herein contained and shall be subject to the terms and conditions
herein set forth.
(b) Option Underwritten Securities. In addition, subject to the terms and
conditions herein set forth, the Company may grant, if so provided in the
applicable Terms Agreement, an option to the Underwriters, severally and not
jointly, to purchase up to the number or aggregate principal amount, as the case
may be, of the Option Underwritten Securities set forth therein at a price per
Option Underwritten Security equal to the price per Initial Underwritten
Security, less an amount equal to any dividends or distributions declared by the
Company and paid or payable on the Initial Underwritten Securities but not
payable on the Option Underwritten Securities. Such option, if granted, will
expire 30 days after the date of such Terms Agreement, and may be exercised in
whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Underwritten Securities upon notice by Merrill Lynch
to the Company setting forth the number or aggregate principal amount, as the
case may be, of Option Underwritten Securities as to which the several
Underwriters are then exercising the option and the time, date and place of
payment and delivery for such Option Underwritten Securities. Any such time and
date of payment and delivery (each, a "Date of Delivery") shall be determined by
Merrill Lynch, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, unless
otherwise agreed upon by Merrill Lynch and the Company. If the option is
exercised as to all or any portion of the Option Underwritten Securities, each
of the Underwriters, severally and not jointly, will purchase that proportion of
the total number or aggregate principal amount, as the case may be, of Option
Underwritten Securities then being purchased which the number or aggregate
principal amount, as the case may be, of Initial Underwritten Securities each
such Underwriter has severally agreed to purchase as set forth in such Terms
Agreement bears to the total number or aggregate principal amount, as the case
may be, of Initial Underwritten Securities, subject to such adjustments as
Merrill Lynch in its discretion shall make to eliminate any sales or purchases
of a fractional number or aggregate principal amount, as the case may be, of
Option Underwritten Securities.
(c) Payment. Payment of the purchase price for, and delivery of, the
Initial Underwritten Securities shall be made at the offices of Brown & Wood
LLP, One World Trade Center, New York, New York 10048 or at such other place as
shall be agreed upon by Merrill Lynch and the Company, at 9:00 A.M. (Eastern
time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time)
on any given day) business day after the date of the applicable Terms Agreement
(unless postponed in accordance with the provisions of Section 10 hereof), or
such other time not later than ten business days after such date as shall be
agreed upon by Merrill Lynch and the Company (such time and date of payment and
delivery being herein called "Closing Time"). In addition, in the event that the
Underwriters have exercised their option, if any, to purchase any or
17
<PAGE> 22
all of the Option Underwritten Securities, payment of the purchase price for,
and delivery of such Option Underwritten Securities, shall be made at the
above-mentioned offices of Brown & Wood LLP or at such other place as shall be
agreed upon by Merrill Lynch and the Company, on the relevant Date of Delivery
as specified in the notice from Merrill Lynch to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
Merrill Lynch for the respective accounts of the Underwriters of the
Underwritten Securities to be purchased by them. It is understood that each
Underwriter has authorized Merrill Lynch, for its account, to accept delivery
of, receipt for, and make payment of the purchase price for, the Underwritten
Securities which it has severally agreed to purchase. Merrill Lynch,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Underwritten
Securities to be purchased by any Underwriter whose funds have not been received
by the Closing Time or the relevant Date of Delivery, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. The Underwritten Securities, certificates
for the Underwritten Securities or Depositary Receipts evidencing the Depositary
Shares, as applicable, shall be in such denominations and registered in such
names as Merrill Lynch may request in writing at least one full business day
prior to the Closing Time or the relevant Date of Delivery, as the case may be.
The Underwritten Securities, certificates for the Underwritten Securities or
Depositary Receipts evidencing the Depositary Shares, as applicable, will be
made available for examination and packaging by Merrill Lynch in The City of New
York not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company and the Operating Partnership. Each of
the Company and the Operating Partnership covenants with Merrill Lynch and with
each Underwriter participating in the offering of Underwritten Securities, as
follows:
(a) Immediately following the execution of the applicable Terms Agreement,
the Company will prepare a prospectus supplement (a "Prospectus Supplement")
setting forth the number of Underwritten Securities covered thereby and their
terms not otherwise specified in the Prospectus pursuant to which the
Underwritten Securities are being issued, the names of the Underwriters
participating in the offering and the number of Underwritten Securities which
each severally has agreed to purchase, the names of the Underwriters acting as
co-managers in connection with the offering, the price at which the Underwritten
Securities are to be purchased by the Underwriters from the Company, the initial
public offering price, if any, the selling concession and reallowance, if any,
any delayed delivery arrangements, and such other information as Merrill Lynch
and the Company or the Operating Partnership, as the case may be, deem
appropriate in connection with the offering of the Underwritten Securities; and
the Company or the Operating Partnership, as the case may be, will, by the close
of business in New York on the business day immediately succeeding the date of
the applicable Terms Agreement,
18
<PAGE> 23
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to the
Underwriters named therein as many copies of the Prospectus (including such
Prospectus Supplement) as Merrill Lynch shall reasonably request. If the Company
or the Operating Partnership, as the case may be, elects to rely on Rule 434
under the 1933 Act Regulations, the Company or the Operating Partnership, as the
case may be, will prepare an abbreviated term sheet that complies with the
requirements of Rule 434 under the 1933 Act Regulations and will provide the
Underwriters with copies of the form of Rule 434 Prospectus, in such number as
the Underwriters may reasonably request, and file or transmit for filing with
the Commission the form of Prospectus complying with Rule 434(c)(2) of the 1933
Act Regulations in accordance with Rule 424(b) of the 1933 Act Regulations by
the close of business in New York on the business day immediately succeeding the
date of the applicable Terms Agreement.
(b) The Company and the Operating Partnership will notify Merrill Lynch
immediately, and confirm such notice in writing, of (i) the effectiveness of any
amendment to the Registration Statement, (ii) the transmittal to the Commission
for filing of any Prospectus Supplement or other supplement or amendment to the
Prospectus or any document to be filed pursuant to the 1934 Act, (iii) the
receipt of any comments from the Commission, (iv) any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (v) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. The Company and
the Operating Partnership will make every reasonable effort to prevent the
issuance of any such stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(c) At any time when the Prospectus is required to be delivered under the
1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company and the Operating Partnership will give Merrill Lynch
notice of its intention to file or prepare any amendment to the Registration
Statement or any amendment or supplement to the Prospectus, whether pursuant to
the 1933 Act, 1934 Act or otherwise, (including any revised Prospectus which the
Company or the Operating Partnership, as the case may be, proposes for use by
the Underwriters in connection with an offering of Underwritten Securities which
differs from the Prospectus on file at the Commission at the time the
Registration Statement first becomes effective, whether or not such revised
Prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of
the 1933 Act Regulations) and will furnish Merrill Lynch with copies of any such
amendment or supplement a reasonable amount of time prior to such proposed
filing or preparation, as the case may be, and will not file or prepare any such
amendment or supplement or other documents in a form to which Merrill Lynch or
counsel for the Underwriters shall reasonably object.
(d) The Company and the Operating Partnership will deliver to each
Underwriter as many signed and conformed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and
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<PAGE> 24
documents incorporated or deemed to be incorporated by reference therein) as
such Underwriter reasonably requests.
(e) The Company or the Operating Partnership, as the case may be, will
furnish to each Underwriter, from time to time during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of the Underwritten Securities, such number of copies of
the Prospectus (as amended or supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations,
the 1934 Act or the 1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or counsel for
the Company and the Operating Partnership, to amend or supplement the Prospectus
in order that the Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, then the Company and
the Operating Partnership will promptly prepare and file with the Commission
such amendment or supplement, whether by filing documents pursuant to the 1933
Act, the 1934 Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement and Prospectus
comply, in the opinion of counsel to the Underwriters, with such requirements,
and the Company and the Operating Partnership will furnish to the Underwriters a
reasonable number of copies of such amendment or supplement.
(g) The Company and the Operating Partnership will endeavor, in
cooperation with the Underwriters, to qualify the Underwritten Securities and
any related Underlying Securities for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as Merrill Lynch may designate; provided,
however, that the Company or the Operating Partnership, as the case may be,
shall not be obligated to qualify as a foreign corporation in any jurisdiction
where it is not so qualified. In each jurisdiction in which the Underwritten
Securities and any related Underlying Securities have been so qualified, the
Company or the Operating Partnership, as the case may be, will file such
statements and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for so long as may be required for the
distribution of the Underwritten Securities; provided, however, that the Company
or the Operating Partnership, as the case may be, shall not be obligated to
qualify as a foreign corporation in any jurisdiction where it is not so
qualified.
(h) With respect to each sale of Underwritten Securities, the Company or
the Operating Partnership, as the case may be, will timely file such reports
pursuant to the 1934 Act as are
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necessary in order to make generally available to its securityholders as soon as
practicable an earnings statement (in form complying with the provisions of Rule
158 of the 1933 Act Regulations) for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(i) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" under the Code for the taxable year
in which sales of the Underwritten Securities are to occur.
(j) The Company or the Operating Partnership, as the case may be, will use
the net proceeds received by it from the sale of the Underwritten Securities in
the manner specified in the Prospectus under the caption "Use of Proceeds."
(k) The Company and the Operating Partnership, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act in
connection with sales of the Underwritten Securities, will file all documents
required to be filed with the Commission pursuant to Section 13, 14 or 15 of the
1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
(l) To the extent specified in the applicable Terms Agreement, neither the
Company nor the Operating Partnership will, with respect to the Underwritten
Securities covered thereby, without Merrill Lynch's prior written consent,
directly or indirectly, sell, offer to sell, grant any option for the sale of,
or otherwise dispose of, any of the applicable Underwritten Securities (other
than the Underwritten Securities which are to be sold pursuant to such Terms
Agreement) or any securities convertible into or exchangeable into or
exercisable for the applicable Underwritten Securities, except in accordance
with this Agreement, pursuant to a dividend reinvestment plan, pursuant to
employee or director stock option plans, or as partial or full payment for
properties to be acquired by the Operating Partnership.
(m) If specified in the applicable Terms Agreement, the Company will use
its best efforts to list the Initial Underwritten Securities on the New York
Stock Exchange or such other national exchange on which the Company's Initial
Underwritten Securities are then listed.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
expenses incident to the performance of its obligations under this Agreement or
the applicable Terms Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Terms Agreement, any Agreement among Underwriters, the Indenture and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Underwritten Securities or any related Underlying
Securities, (iii) the preparation, issuance and delivery of the Underwritten
Securities and any related Underlying Securities, any certificates for the
Underwritten Securities or such Underlying Securities or Depositary Receipts
evidencing the
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Depositary Shares, as applicable, to the Underwriters, including any transfer
taxes and any stamp or other duties payable upon the sale, issuance or delivery
of the Underwritten Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors or agents
(including transfer agents and registrars), as well as the fees and
disbursements of the Trustee, any Depositary, any Warrant Agent and their
respective counsel, (v) the qualification of the Underwritten Securities and any
related Underlying Securities under state securities laws and real estate
syndication laws in accordance with the provisions of Section 3(g) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation,
printing and delivery of the Blue Sky Survey, and any amendment thereto, (vi)
the printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheet, and the Prospectus and any amendments or supplements
thereto, (vii) the fees charged by nationally recognized statistical rating
organizations for the rating of the Underwritten Securities and any related
Underlying Securities, if applicable, (viii) the fees and expenses incurred with
respect to the listing of the Underwritten Securities and any related Underlying
Securities, if applicable, (ix) the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the
review, if any, by the NASD of the terms of the sale of the Underwritten
Securities and any related Underlying Securities, and (x) the reasonable fees
and expenses of any Underwriter acting in the capacity of a "qualified
independent underwriter" (as defined in Rule 2720(b)(15) of the Rules of the
NASD), if applicable.
(b) Termination of Agreement. If the applicable Terms Agreement is
terminated by Merrill Lynch in accordance with the provisions of Section 5 or
Section 9(b)(i) hereof, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Underwritten Securities pursuant to the
applicable Terms Agreement are subject to the accuracy in all material respects
of the representations and warranties of the Company and the Operating
Partnership contained in Section 1 hereof or in certificates of any officer of
the Company or the Operating Partnership or any of their respective subsidiaries
delivered pursuant to the provisions hereof, to the performance by the Company
and the Operating Partnership of its covenants and other obligations hereunder,
and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective under the
1933 Act and no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. A prospectus containing information relating to the
description of the Underwritten Securities and any related Underlying
Securities, the specific method of distribution and similar matters shall
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<PAGE> 27
have been filed with the Commission in accordance with Rule 424(b)(1), (2), (3),
(4) or (5), as applicable (or any required post-effective amendment providing
such information shall have been filed and declared effective in accordance with
the requirements of Rule 430A), or, if the Company or the Operating Partnership
has elected to rely upon Rule 434 of the 1933 Act Regulations, a Term Sheet
including the Rule 434 Information shall have been filed with the Commission in
accordance with Rule 424(b)(7).
(b) Opinion of Counsel for the Company and the Operating Partnership. At
Closing Time, Merrill Lynch shall have received the favorable opinion, dated as
of Closing Time, of Rogers & Wells, counsel for the Company and the Operating
Partnership, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, to the effect set forth in Exhibit B hereto and to
such further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for the Underwriters. At Closing Time, Merrill
Lynch shall have received the favorable opinion, dated as of Closing Time, of
Brown & Wood LLP, counsel for the Underwriters, with respect to the matters set
forth in (i), (vii) to (xix), inclusive, of Exhibit B.
(d) Additional Opinion. In giving their opinions required by subsections
(b) and (c), respectively, of this Section, Rogers & Wells and Brown & Wood LLP
shall each additionally state that nothing has come to their attention that
would lead them to believe that the Registration Statement or any amendment
thereto (except for financial statements, supporting schedules and other
financial data, as to which counsel need make no statement), at the time it
became effective (or, if an amendment to the Registration Statement or an Annual
Report on Form 10-K has been filed by the Company or the Operating Partnership
with the Commission, subsequent to the effectiveness of the Registration
Statement, then at the time such amendment becomes effective or at the time of
the most recent filing of such Annual Report, as the case may be) or at the
Representation Date, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements, supporting
schedules and other financial data, as to which such counsel need make no
statement), at the Representation Date or at Closing Time, included or includes
an untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In giving their
opinions required by subsections (b) and (c), respectively, of this Section,
Rogers & Wells and Brown & Wood LLP may rely, (1) as to all matters of fact,
upon certificates and written statements of officers and employees of and
accountants for the Company and the Operating Partnership, (2) with respect to
certain other matters, upon certificates of appropriate government officials in
such jurisdiction, and (3) as to matters involving the laws of the State of
Maryland, upon the opinion of Piper Marbury L.L.P. (or other counsel reasonably
satisfactory to counsel for the Underwriters) in form and substance satisfactory
to counsel for the Underwriters.
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(e) Officers' Certificate. At Closing Time, there shall not have been,
since the date of the applicable Terms Agreement or since the respective dates
as of which information is given in the Prospectus, any material adverse change
in the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise or the Operating Partnership and its subsidiaries considered as one
enterprise, or the Properties, collectively, whether or not arising in the
ordinary course of business, from that set forth in the Prospectus; no
proceedings shall be pending or, to the knowledge of the Company or the
Operating Partnership, threatened against the Company, the Operating Partnership
or any of their respective subsidiaries or any of the Properties before or by
any Federal, state or other commission, board or administrative agency wherein
an unfavorable decision, ruling or finding would materially and adversely affect
the business, property, financial condition or income of the Company and its
subsidiaries considered as one enterprise or the Operating Partnership and its
subsidiaries considered as one enterprise or the Properties, collectively, other
than as set forth in the Prospectus or incorporated therein by reference; and
Merrill Lynch shall have received a certificate of the President or the Chief
Executive Officer and of the Chief Financial Officer of the Company in such
capacity, and of the general partner of the Operating Partnership, dated as of
such Closing Time, to the effect that (i) there has been no such material
adverse change and (ii) the representations and warranties in Section 1 are true
and correct in all material respects with the same force and effect as though
such Closing Time were a Representation Date. As used in this Section 5(e), the
term "Prospectus" means the Prospectus in the form first used to confirm sales
of the Underwritten Securities.
(f) Accountant's Comfort Letter. At the time of the execution of the
applicable Terms Agreement, Merrill Lynch shall have received from (1) Coopers &
Lybrand L.L.P. a letter dated such date, in form and substance reasonably
satisfactory to Merrill Lynch, together with signed or reproduced copies of such
letter for each of the other Underwriters, containing statements and information
as set forth in Exhibit C and (2) Deloitte & Touche LLP a letter dated such
date, in form and substance reasonably satisfactory to Merrill Lynch, together
with signed or reproduced copies of such letter for each of the other
Underwriters, with respect to the historical consolidated financial statements
of ROC Communities.
(g) Bring-down Comfort Letter. At Closing Time, Merrill Lynch shall have
received from Coopers & Lybrand L.L.P. a letter, dated as of Closing Time, to
the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (f)(1) of this Section 5, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Time.
(h) Comfort Letter for Acquisitions. At the time of the execution of the
applicable Terms Agreement, Merrill Lynch shall have received a letter dated
such date from such independent accountants that have prepared historical
financial statements included in or incorporated by reference into the
Registration Statement and Prospectus which financial statements relate to
properties or assets acquired or to be acquired by the Company or the Operating
Partnership, as the case may be, in form and substance satisfactory to the
Underwriters, to the effect that (i) they
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are independent accountants with respect to the Company or the Operating
Partnership, as the case may be, and such properties or assets within the
meaning of the 1933 Act and the 1933 Act Regulations; and (ii) it is their
opinion that the historical financial statements for such properties or assets
that have been audited by them and covered by their opinions included or
incorporated by reference into the Registration Statement and the Prospectus
comply in form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations.
(i) Ratings. At Closing Time and at any relevant Date of Delivery, unless
the Underwritten Securities being sold pursuant to the applicable Terms
Agreement relate solely to Common Stock, the Underwritten Securities shall have
the ratings accorded by any "nationally recognized statistical rating
organization", as defined by the Commission for purposes of Rule 436(g)(2) of
the 1933 Act Regulations, if and as specified in the applicable Terms Agreement,
and the Company shall have delivered to Merrill Lynch a letter, dated as of such
date, from each such rating organization, or other evidence satisfactory to
Merrill Lynch, confirming that the Underwritten Securities have such ratings.
Since the time of execution of such Terms Agreement, there shall not have
occurred a downgrading in, or withdrawal of, the rating assigned to the
Underwritten Securities or any of the Company's or Operating Partnership's other
securities by any such rating organization, and no such rating organization
shall have publicly announced that it has under surveillance or review its
rating of the Underwritten Securities or any of the Company's or Operating
Partnership's other securities.
(j) Approval of Listing. At Closing Time, the Underwritten Securities
shall have been approved for listing, subject only to official notice of
issuance, if and as specified in the applicable Terms Agreement.
(k) No Objection. If the Registration Statement or an offering of
Underwritten Securities has been filed with the NASD for review, the NASD shall
not have raised any objection with respect to the fairness and reasonableness of
the underwriting terms and arrangements.
(l) Lock-up Agreements. On the date of the applicable Terms Agreement,
Merrill Lynch shall have received, in form and substance satisfactory to it,
each lock-up agreement, if any, specified in such Terms Agreement as being
required to be delivered by the persons listed therein.
(m) Over-Allotment Option. In the event that the Underwriters are granted
an over-allotment option by the Company in the applicable Terms Agreement and
the Underwriters exercise their option to purchase all or any portion of the
Option Underwritten Securities, the representations and warranties of the
Company and the Operating Partnership contained herein and the statements in any
certificates furnished by the Company, the Operating Partnership or any of their
respective subsidiaries hereunder shall be true and correct as of each Date of
Delivery, and, at the relevant Date of Delivery, Merrill Lynch shall have
received:
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(1) A certificate, dated such Date of Delivery, of the President,
Chief Executive Officer or a Vice President of the Company and of the
Chief Financial Officer or chief accounting officer of the Company on
behalf of the Company and on behalf of the Company in its capacity as
general partner of the Operating Partnership confirming that the
certificate delivered at the Closing Time pursuant to Section 5(e) hereof
remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Rogers & Wells, counsel for the Company
and the Operating Partnership, in form and substance reasonably
satisfactory to counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Underwritten Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion required
by Sections 5(b) and 5(d) hereof.
(3) The favorable opinion of Brown & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Underwritten Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Sections 5(c) and
5(d) hereof.
(4) A letter from Coopers & Lybrand L.L.P., in form and substance
satisfactory to Merrill Lynch and dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished to
Merrill Lynch pursuant to Section 5(f)(1) hereof, except that the
"specified date" in the letter furnished pursuant to this Section 5(m) (4)
shall be a date not more than three days prior to such Date of Delivery.
(5) Since the time of execution of such Terms Agreement, there shall
not have occurred a downgrading in, or withdrawal of, the rating assigned
to the Underwritten Securities or any of the Company's or Operating
Partnership's other securities by any such rating organization, and no
such rating organization shall have publicly announced that it has under
surveillance or review its rating of the Underwritten Securities or any of
the Company's or the Operating Partnership's other securities.
(n) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Underwritten Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company or the Operating Partnership in
connection with the issuance and sale of the Underwritten Securities as herein
contemplated shall be reasonably satisfactory in form and substance to Merrill
Lynch and counsel for the Underwriters.
(o) Termination of Terms Agreement. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be fulfilled,
the applicable Terms Agreement (or, with respect to the Underwriters' exercise
of any applicable over-allotment option for the
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purchase of Option Underwritten Securities on a Date of Delivery after the
Closing Time, the obligations of the Underwriters to purchase the Option
Underwritten Securities on such Date of Delivery) may be terminated by Merrill
Lynch by notice to the Company at any time at or prior to the Closing Time (or
such Date of Delivery, as applicable), and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and the Operating
Partnership, jointly and severally, hereby agree to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information deemed to be a part thereof, if applicable,
or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that any such settlement is
effected with the written consent of the indemnifying party; and
(3) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (1) or (2)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information
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furnished to the Company and the Operating Partnership by any Underwriter
through Merrill Lynch expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information deemed to be a part thereof, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Operating Partnership, Directors and
Officers. Each Underwriter severally agrees to indemnify and hold harmless the
Company, the Operating Partnership, the directors, each of the officers who
signed the Registration Statement, and each person, if any, who controls the
Company or the Operating Partnership within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information deemed to be a part thereof, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company and the Operating Partnership by such Underwriter through Merrill
Lynch expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
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a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company or the
Operating Partnership, on the one hand, and the Underwriters, on the other hand,
from the offering of the Underwritten Securities pursuant to the applicable
Terms Agreement or (ii) if the allocation provided by clause (i) 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 or the Operating Partnership, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company or the Operating
Partnership, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Underwritten Securities pursuant to the
applicable Terms Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Underwritten
Securities (before deducting expenses) received by the Company or the Operating
Partnership and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet bear to the aggregate initial
public offering price of such Underwritten Securities as set forth on such
cover.
The relative fault of the Company or the Operating Partnership, on the one
hand, and the Underwriters, on the other hand, shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Operating Partnership or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Operating Partnership 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 which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by
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<PAGE> 34
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or the
Operating Partnership within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company or the Operating Partnership. The Underwriters' respective obligations
to contribute pursuant to this Section 7 are several in proportion to the number
or aggregate principal amount, as the case may be, of Initial Underwritten
Securities set forth opposite their respective names in the applicable Terms
Agreement, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or
the applicable Terms Agreement or in certificates of officers of the Company and
the Operating Partnership or any of their respective subsidiaries submitted
pursuant hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company or the Operating
Partnership, and shall survive delivery of and payment for the Underwritten
Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. This Agreement (excluding the applicable Terms
Agreement) may be terminated for any reason at any time by the Company, the
Operating Partnership or by Merrill Lynch upon the giving of 30 days' prior
written notice of such termination to the other party hereto.
(b) Terms Agreement. Merrill Lynch may terminate the applicable Terms
Agreement, by notice to the Company, at any time at or prior to the Closing Time
or any relevant Date of Delivery, if (i) there has been, since the time of
execution of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change
30
<PAGE> 35
in the condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise or the Operating Partnership and subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
there has occurred any material adverse change in the financial markets in the
United States or, if the Underwritten Securities or any related Underlying
Securities include Debt Securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, in the international financial markets,
or any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of Merrill Lynch,
impracticable to market the Underwritten Securities or to enforce contracts for
the sale of the Underwritten Securities, or (iii) trading in any securities of
the Company has been suspended or materially limited by the Commission or the
New York Stock Exchange, or if trading generally on the New York Stock Exchange
or the American Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by either of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) a banking moratorium has been declared by either
Federal or New York authorities or, if the Underwritten Securities or any
related Underlying Securities include Debt Securities denominated or payable in,
or indexed to, one or more foreign or composite currencies, by the relevant
authorities in the related foreign country or countries.
(c) Liabilities. If this Agreement or the applicable Terms Agreement is
terminated pursuant to this Section 9, such termination shall be without
liability of any party to any other party except as provided in Section 4
hereof, and provided further that Sections 1, 6, 7 and 8 shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at the Closing Time or the relevant Date of
Delivery, as the case may be, to purchase the Underwritten Securities which it
or they are obligated to purchase under the applicable Terms Agreement (the
"Defaulted Securities"), then Merrill Lynch shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, Merrill Lynch shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities does not exceed 10% of the number or aggregate
principal amount, as the case may be, of Underwritten Securities to be
purchased on such date pursuant to such Terms Agreement, the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting
31
<PAGE> 36
obligations under such Terms Agreement bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the number or aggregate principal
amount, as the case may be, of Underwritten Securities to be purchased on
such date pursuant to such Terms Agreement, such Terms Agreement (or, with
respect to the Underwriters' exercise of any applicable over-allotment
option for the purchase of Option Underwritten Securities on a Date of
Delivery after the Closing Time, the obligations of the Underwriters to
purchase, and the Company to sell, such Option Underwritten Securities on
such Date of Delivery) shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in (i) a
termination of the applicable Terms Agreement or (ii) in the case of a Date of
Delivery after the Closing Time, a termination of the obligations of the
Underwriters and the Company with respect to the related Option Underwritten
Securities, as the case may be, either Merrill Lynch or the Company shall have
the right to postpone the Closing Time or the relevant Date of Delivery, as the
case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Merrill Lynch at World Financial Center, North
Tower, New York, New York 10281-1201, attention of John C. Brady, Director;
notices to the Company shall be directed to it at Chateau Communities, Inc.,
6430 South Quebec Street, Englewood, Colorado 80111, attention of Gary P.
McDaniel, Chief Executive Officer; and notices to the Operating Partnership
shall be directed to it at CP Limited Partnership, 6430 South Quebec Street,
Englewood, Colorado 80111, attention of Gary P.
McDaniel, Chief Executive Officer.
SECTION 12. Parties. This Agreement and the applicable Terms Agreement
shall each inure to the benefit of and be binding upon the Company, the
Operating Partnership, Merrill Lynch and, upon execution of such Terms
Agreement, any other Underwriters and their respective successors. Nothing
expressed or mentioned in this Agreement or such Terms Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and the Operating Partnership and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or such
Terms Agreement or any provision herein or therein contained. This Agreement and
such Terms Agreement and all conditions and provisions hereof and thereof are
32
<PAGE> 37
intended to be for the sole and exclusive benefit of the parties hereto and
thereto and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Underwritten
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT AND ANY APPLICABLE
TERMS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
33
<PAGE> 38
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Agreement, along with all counterparts, will become a binding agreement
between Merrill Lynch and the Company and the Operating Partnership in
accordance with its terms.
Very truly yours,
CHATEAU COMMUNITIES, INC.
By:
-----------------------------
Name:
Title:
CP LIMITED PARTNERSHIP
By: Chateau Communities, Inc.
(one of its general partners)
By:
-----------------------------
Name:
Title:
By: ROC Communities, Inc.
(its other general partner)
By:
-----------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
---------------------------
Authorized Signatory
34
<PAGE> 39
EXHIBIT A
CHATEAU COMMUNITIES, INC.
(a Maryland Corporation)
CP LIMITED PARTNERSHIP
(a Maryland limited partnership)
[ ]
TERMS AGREEMENT
[ ]
To: Chateau Communities, Inc.
643 South Quebec Street
Englewood, Colorado 80111
Ladies and Gentlemen:
We understand that [Chateau Communities, Inc., a Maryland corporation (the
"Company")] [CP Limited Partnership, a Maryland limited partnership (the
"Operating Partnership")], proposes to issue and sell [ shares of its common
stock, par value $.01 per share (the "Common Stock")] [ warrants for the
purchase of Common Stock (the "Warrants")][ shares of its preferred stock, par
value [ ] per share (the "Preferred Stock")] [ depositary shares, each
representing of a share of Preferred Stock (the "Depositary Shares")] [$
aggregate principal amount of its [senior] [subordinated] debt securities (the
"Debt Securities")] ([such securities also being hereinafter referred to as] the
"[Initial] Underwritten Securities"). Subject to the terms and conditions set
forth or incorporated by reference herein, we [the underwriters named below (the
"Underwriters")] offer to purchase [, severally and not jointly,] the [[number]
[principal] [amount] of] Underwritten Securities [opposite their names set forth
below] at the purchase price set forth below [, and a proportionate share of
Option Underwritten Securities set forth below, to the extent any are
purchased].
A-1
<PAGE> 40
[Number]
[Principal Amount]
Underwriter of [Initial] Underwritten Securities
- ----------- ------------------------------------
----------------
Total [$]
================
The Underwritten Securities shall have the following terms:
[Common Stock]
Title:
Number of shares:
Number of Option Underwritten Securities:
Initial public offering price per share: $
Purchase price per share: $
Listing requirements:
Black-out provisions:
Lock-up provisions:
Other terms and conditions:
Closing date and location:
[Preferred Stock]
Title:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
A-2
<PAGE> 41
Initial public offering price per share: $___ plus accumulated dividends, if
any, from _____
Purchase price per share: $___ plus accumulated dividends, if
any, from _____
Other terms and conditions:
Closing date and location:
[Depositary Shares]
Title:
Fractional amount of Preferred Shares represented by each Depositary Share:
Rank:
Ratings:
Number of shares:
Number of Option Underwritten Securities:
Dividend rate (or formula) per share: $
Dividend payment dates:
Stated value: $
Liquidation preference per share: $
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Lock-up provisions:
Initial public offering price per share: $___ plus accumulated dividends, if
any, from _____
Purchase price per share: $___ plus accumulated dividends, if
any, from _____
Other terms and conditions:
Closing date and location:
[Warrants]
Title of Warrants:
Number to be issued:
Initial public offering price per Warrant: $
Purchase price per Warrant: $
Listing requirement: [None] [NYSE]
Exercisable for:
Exercise price:
Exercise provisions:
Closing date and location:
Additional representations, if any:
Redemption provisions:
Lock-up provisions:
Other terms and conditions:
A-3
<PAGE> 42
A-4
<PAGE> 43
[Debt Securities]
Title:
Rank:
Ratings:
Aggregate principal amount:
Denominations:
Currency of payment:
Interest rate or formula:
Interest payment dates:
Regular record dates:
Stated maturity date:
Redemption provisions:
Sinking fund requirements:
Conversion provisions:
Listing requirements:
Black-out provisions:
Fixed or Variable Price Offering: [Fixed] [Variable] Price Offering
If Fixed Price Offering, initial public offering price per share: %
of the principal amount, plus accrued interest [amortized original issue
discount], if any, from ___________________.
Purchase price per share: ___% of principal amount, plus accrued interest
[amortized original issue discount], if any, from _________________.
Form:
Other terms and conditions:
Closing date and location:
All of the provisions contained in the document attached as Annex I hereto
entitled "CHATEAU COMMUNITIES, INC./CP LIMITED PARTNERSHIP -- Common Stock,
Preferred Stock, Depositary Shares Representing Preferred Stock, Warrants and
Debt Securities--Underwriting Agreement" are hereby incorporated by reference in
their entirety herein and shall be deemed to be a part of this Terms Agreement
to the same extent as if such provisions had been set forth in full herein.
Terms defined in such document are used herein as therein defined.
A-5
<PAGE> 44
Please accept this offer no later than ____ o'clock P.M. (New York City
time) on ______________ by signing a copy of this Terms Agreement in the space
set forth below and returning the signed copy to us.
Very truly yours,
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
------------------------------
Authorized Signatory
[Acting on behalf of itself and the other named
Underwriters.]
Accepted:
CHATEAU COMMUNITIES, INC.
By:
----------------------------
Name:
Title:
CP LIMITED PARTNERSHIP
By: Chateau Communities, Inc.
(a general partner)
By:
----------------------------
Name:
Title:
By: ROC Communities, Inc.
(a general partner)
By:
----------------------------
Name:
Title:
A-6
<PAGE> 45
EXHIBIT B
FORM OF OPINION OF COUNSEL FOR THE COMPANY
AND THE OPERATING PARTNERSHIP TO BE DELIVERED
PURSUANT TO SECTION 5(b)
(i) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Maryland.
(ii) The Operating Partnership has been duly formed and is validly
existing as a limited partnership in good standing under the laws of the
State of Maryland. All of the issued and outstanding partnership interests
of the Operating Partnership have been duly authorized and validly issued
to the Company and the entities or persons described in the Prospectus and
are fully paid.
(iii) Each "significant subsidiary" of the Operating Partnership (as
such term is defined in Rule 1-02 of Regulation S-X promulgated under the
1933 Act) (each, a "Subsidiary" and, collectively, the "Subsidiaries") has
been duly organized and is validly existing as a partnership, limited
liability company or corporation, as the case may be, in good standing
under the laws of its state of organization.
(iv) Each of the Company and its subsidiaries and each of the
Operating Partnership and its Significant Subsidiaries has full corporate,
limited liability company or partnership power and authority, as the case
may be, to own, lease and operate its properties and to conduct its
respective business as described in the Prospectus.
(v) Each of the Company and its subsidiaries and each of the
Operating Partnership and its Significant Subsidiaries is duly qualified
or registered as a foreign corporation, limited liability company or
partnership, as the case may be, to transact business and is in good
standing in the States of Colorado, Florida, Georgia, Maryland, Michigan,
Minnesota and Indiana.
(vi) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under "Capitalization" (as of
the date set forth therein) and such stock has been duly authorized,
validly issued, fully paid and non-assessable. The issued and outstanding
Units of the Operating Partnership is as set forth in the Prospectus under
"Capitalization: (as of the date set forth therein) and such Units have
been duly authorized, validly issued, fully paid and non-assessable.
(vii) Each of this Agreement and the applicable Terms Agreement has
been duly authorized, executed and delivered by the Company.
B-1
<PAGE> 46
(viii) Each of this Agreement and the applicable Terms Agreement has
been duly authorized, executed and delivered by the Operating Partnership.
(ix) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Common Stock, such
Underwritten Securities have been duly authorized for issuance and sale
pursuant to this Agreement and such Terms Agreement. The Common Stock,
when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth in such Terms Agreement or
any Delayed Delivery Contract, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar
rights arising out of the operation of law or otherwise. The form of
certificate used to evidence the Underwritten Securities is in due and
proper form and complies in all material respects with all applicable
statutory requirements.
(x) If the Underwritten Securities being sold pursuant to the
applicable Terms Agreement include Preferred Stock, such Underwritten
Securities have been duly authorized for issuance and sale pursuant to
this Agreement and such Terms Agreement. The Preferred Stock, when issued
and delivered by the Company pursuant to this Agreement against payment of
the consideration therefor specified in such Terms Agreement, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights of any securityholder of the Company.
The applicable Articles Supplementary is in full force and effect. The
form of certificate used to evidence the Underwritten Securities is in due
and proper form and complies in all material respects with all applicable
statutory requirements.
(xi) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Depositary Shares,
such Depositary Shares and the deposit of the Preferred Stock in
accordance with the Deposit Agreement have been duly authorized by the
Company for issuance and sale pursuant to this Agreement and such Terms
Agreement. The Depositary Shares, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration therefor
specified in such Terms Agreement, will be validly issued, fully paid and
non-assessable and will not be subject to preemptive or other similar
rights of any securityholder of the Company. Upon deposit by the Company
of any Preferred Stock represented by Depositary Shares with the
Depositary and the execution and delivery of the Depositary Receipts
evidencing such Depositary Shares pursuant to the terms of the Deposit
Agreement, the persons in whose names such Depositary Receipts are
registered will be entitled to the proportional rights, preferences and
limitations of the Preferred Stock represented by the Depositary Shares
evidenced by such Depositary Receipts and to such other rights as are
granted to such registered holder in such Deposit Agreement. The form of
certificate used to evidence the Underwritten Securities is in due and
proper form and complies in all material respects with all applicable
statutory requirements.
B-2
<PAGE> 47
(xii) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Warrants, such
Underwritten Securities have been duly authorized for issuance and sale
pursuant to this Agreement and such Terms Agreement. The Warrants, when
executed, countersigned and delivered in the manner provided for in the
Warrant Agreement and issued and paid for in accordance with this
Agreement and the applicable Terms Agreement, will constitute valid and
binding obligations of the Company entitled to the benefits of the Warrant
Agreement and enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law); each registered holder thereof is
entitled to the benefits of the Warrant Agreement; and the Warrants are
exercisable for Common Stock in accordance with their terms and the terms
of the Warrant Agreement.
(xiii) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Debt Securities, such
Underwritten Securities have been duly authorized by the Operating
Partnership for issuance and sale pursuant to this Agreement and such
Terms Agreement. The Debt Securities, when issued and authenticated in the
manner provided for in the Indenture and delivered against payment of the
consideration therefor specified in such Terms Agreement, constitutes
valid and legally binding obligations of the Operating Partnership,
enforceable against the Operating Partnership in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law); and the Debt Securities, in the forms
certified on the date hereof, are in the form contemplated by, and each
registered holder thereof is entitled to the benefits of, the Indenture.
(xiv) If applicable, the Underlying Securities have been duly
authorized and reserved for issuance upon such exercise or conversion by
the Company and, when issued upon such exercise or conversion, will be
validly issued, fully paid and non-assessable and will not be subject to
preemptive or other similar rights.
(xv) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Depositary Shares or
Warrants, the applicable Deposit Agreement or the applicable Warrant
Agreement, as the case may be, has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery thereof by the Depositary or the Warrant Agent, as the case may
be, constitutes a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent
B-3
<PAGE> 48
transfers), reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law); and the applicable Deposit Agreement or
the Warrant Agreement, as the case may be, conforms in all material
respects to the statements relating thereto contained in the Prospectus
and is substantially in the form filed or incorporated by reference, as
the case may be, as an exhibit to the Registration Statement.
(xvi) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Debt Securities, the
Indenture has been duly authorized, executed and delivered by the
Operating Partnership and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
agreement of the Operating Partnership, enforceable against the Operating
Partnership in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally or by general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xvii) The Indenture has been duly qualified under the 1939 Act; and
the Indenture conforms in all material respects to the statements relating
thereto contained in the Prospectus and is substantially in the form filed
or incorporated by reference, as the case may be, as an exhibit to the
Registration Statement.
(xviii) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Debt Securities in
the form of MandatOry Par Put Remarketed SecuritiesSM, the Remarketing
Agreement (as defined in the Prospectus) has been duly authorized,
executed and delivered by the Operating Partnership and the Company and,
assuming due authorization, execution and delivery thereof by the
Remarketing Dealer (as defined in the Prospectus), constitutes a valid and
legally binding agreement of the Operating Partnership and the Company,
enforceable against the Operating Partnership and the Company in
accordance with its terms; and the Remarketing Agreement conforms in all
material respects to the statements relating thereto contained in the
Prospectus and is substantially in the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration
Statement.
(xix) The Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement, and any Underlying
Securities, when issued and delivered in accordance with the terms of the
related Underwritten Securities, conform in all material respects to the
statements relating thereto contained in the Prospectus; and the form of
certificate used to evidence the Underwritten Securities is in due and
proper form and complies in all material respects with all applicable
statutory requirements.
B-4
<PAGE> 49
(xx) The Registration Statement has been declared effective under
the 1933 Act and, to the best of our knowledge and information, no stop
order suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or threatened
by the Commission.
(xxi) The Registration Statement and the Prospectus and each
amendment or supplement to the Registration Statement and Prospectus,
excluding the documents incorporated by reference therein, as of their
respective effective or issue dates, comply as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations; it being understood, however, that no opinion need be
rendered with respect to the financial statements, supporting schedules
and other financial data included or incorporated by reference in or
excluded from the Registration Statement or the Prospectus and the
Trustee's Statement of Eligibility on Form T-1. If applicable, the Rule
434 Prospectus conforms to the requirements of Rule 434 under the 1933 Act
Regulations.
(xxii) Each document filed pursuant to the 1934 Act (other than the
financial statements, supporting schedules and other financial data
included therein or excluded therefrom, as to which no opinion need be
rendered) and incorporated or deemed to be incorporated by reference in
the Prospectus complied when so filed as to form in all material respects
with the 1934 Act and the 1934 Act Regulations.
(xxiii) To the best our knowledge, no authorization, approval or
consent of any court or governmental authority or agency is required that
has not been obtained in connection with the consummation by the Company,
the Operating Partnership or any of their respective subsidiaries of the
transactions contemplated by this Agreement or the Terms Agreement, and,
if applicable, the Indenture, the Remarketing Agreement, the Deposit
Agreement or the Warrant Agreement, or the consummation of the
transactions contemplated herein and therein, except such as may be
required under the 1933 Act or the 1933 Act Regulations, the 1934 Act or
the 1934 Act Regulations, the 1939 Act or the 1939 Act Regulations, state
securities laws, real estate syndication laws or under the rules and
regulations of the NASD.
(xxiv) The Company, the Operating Partnership and any of their
respective subsidiaries are not, and upon the issuance and sale of the
Underwritten Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
(xxv) If the Underwritten Securities being sold pursuant to this
Agreement and the applicable Terms Agreement include Common Stock,
Preferred Stock and Depositary Shares, there are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise registered
by the Company or the Operating Partnership under the 1933 Act.
B-5
<PAGE> 50
(xxvi) Commencing with the Company's first taxable year ended
December 31, 1993, the Company has been organized in conformity with the
requirements for qualifications as a REIT under the Code and the Company's
method of operation will enable it to meet the requirements for taxation
as a REIT under the Code.
(xxvii) The statements set forth in the Prospectus under the
captions "Description of Debt Securities," "Description of Common Stock,"
"Description of Preferred Stock," "Description of Depositary Shares, "
"Description of Warrants" and "Federal Income Tax Considerations," or any
caption purporting to cover such matters, and the statements set forth in
the Prospectus Supplement under the caption "Description of the Offered
Securities" and "Certain United States Federal Income Tax Considerations,"
or any caption purporting to cover such matters, and the information in
the Registration Statement under Item 15 relating to indemnification of
officers and directors, to the extent such statements or information
constitute matters of law, or legal conclusions, have been reviewed by us
and are correct in all material respects.
(xxviii) To the best of our knowledge, there are no legal or
governmental proceedings pending or threatened against the Company, the
Operating Partnership or any of their respective subsidiaries which are
required to be disclosed in the Prospectus, other than those disclosed
therein, and all pending legal or governmental proceedings to which the
Company, the Operating Partnership or any of their respective subsidiaries
is a party or of which any of the Properties or assets of the Company, the
Operating Partnership or any of their respective subsidiaries is the
subject which are not described in the Prospectus, including ordinary
routine litigation incidental to the business, are, considered in the
aggregate, not material.
(xxix) To the best of our knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or
the Prospectus or to be filed as exhibits thereto other than those
described or referred to therein or filed as exhibits thereto and the
descriptions thereof or references thereto are correct in all material
respects, and, to the best of our knowledge and information, no default
exists in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument so described,
referred to or filed.
(xxx) The execution and delivery of this Agreement, the applicable
Terms Agreement, and, if applicable, the Indenture, the Remarketing
Agreement, the Deposit Agreement or the Warrant Agreement and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company, the Operating Partnership or any of their
respective subsidiaries in connection with the transactions contemplated
in the Prospectus, and the consummation of the transactions contemplated
herein and therein and compliance by each of the Company, the Operating
Partnership or any of their respective subsidiaries with its obligations
hereunder and thereunder will not conflict with or constitute
B-6
<PAGE> 51
a breach of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any Property or assets of the
Company, the Operating Partnership or any of their respective subsidiaries
pursuant to any contract, indenture, mortgage, loan agreement known to us,
to which the Company, the Operating Partnership or any of their respective
subsidiaries is a party or by which it or any of them may be bound or to
which any of the Properties or assets of the Company, the Operating
Partnership or any of their respective subsidiaries is subject, nor will
such action result in violation of the provisions of the charter, by-laws,
agreement of limited partnership or other organizational documents of the
Company, the Operating Partnership or any of their respective subsidiaries
or any applicable law, administrative regulation or administrative or
court order or decree known to us.
B-7
<PAGE> 52
EXHIBIT C
FORM OF ACCOUNTANT'S COMFORT LETTER PURSUANT TO SECTION 5(f)
We are independent public accountants with respect to the Company and the
Operating Partnership within the meaning of the 1933 Act and the 1933 Act
Regulations and:
(i) in our opinion, the audited consolidated financial statements
and the related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim consolidated financial statements of the
Company and the Operating Partnership for the [three- month periods ended
_________, 19__ and _________, 19__, the three- and six-month periods
ended _________, 19__ and _________, 19__ and the three- and nine-month
periods ended _________, 19__ and _________, 19__, included or
incorporated by reference in the Registration Statement and the Prospectus
(collectively, the "10-Q Financials")] [, a reading of the unaudited
interim consolidated financial statements of the Company and the Operating
Partnership for the _____-month periods ended _________, 19___ and
_________, 19___, included or incorporated by reference in the
Registration Statement and the Prospectus (the "_____-month financials")]
[, a reading of the latest available unaudited interim consolidated
financial statements of the Company and the Operating Partnership], a
reading of the minutes of all meetings of the stockholders and directors
of the Company and the Operating Partnership and its subsidiaries and
committees thereof since [day after end of last audited period], inquiries
of certain officials of the Company and the Operating Partnership and its
subsidiaries responsible for financial and accounting matters, a review of
interim financial information in accordance with standards established by
the American Institute of Certified Public Accountants in Statement on
Auditing Standards No. 71, Interim Financial Information ("SAS 71"), with
respect to the [description of relevant periods] and such other inquiries
and procedures as may be specified in such letter, nothing came to our
attention that caused us to believe that:
(A) the 10-Q Financials included or incorporated by reference
in the Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations applicable
to unaudited financial statements included in Form 10-Q or any
material modifications should be made to the 10-Q Financials
included or incorporated by reference in the Registration
C-1
<PAGE> 53
Statement and the Prospectus for them to be in conformity with
generally accepted accounting principles;
[(B) the _____-month financials included or incorporated by
reference in the Registration Statement and the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations
applicable to unaudited interim financial statements included in
registration statements or any material modifications should be made
to the _____-month financials included in the Registration Statement
and the Prospectus for them to be in conformity with generally
accepted accounting principles;]
(C) at [_________, 19___ and at] a specified date not more
than three days prior to the date of the applicable Terms Agreement,
there was any change in the capital stock of the Company and the
Operating Partnership and its subsidiaries, any decrease in the net
assets of the Company and the Operating Partnership and its
subsidiaries or any increase in the debt of the Company and the
Operating Partnership and its subsidiaries, in each case as compared
with amounts shown in the most recent consolidated balance sheet
included or incorporated by reference in the Registration Statement
and the Prospectus, except in each case for any changes, decreases
or increases that the Registration Statement and the Prospectus
disclose have occurred or may occur; or
(D) for the period from [_________, 19__ to _________, 19__
and for the period from] _________, 19__ to a specified date not
more than three days prior to the date of the applicable Terms
Agreement, there was any decrease in consolidated revenue, operating
income, funds from operation or net income or net income per share
of the Company and the Operating Partnership, in each case as
compared with the comparable period in the preceding year, except in
each case for any decreases that the Registration Statement and the
Prospectus discloses have occurred or may occur;
[(iii) based upon the procedures set forth in clause (ii) above and
a reading of the Selected Financial Information included or incorporated
by reference in the Registration Statement and the Prospectus [and a
reading of the financial statements from which such data were derived],
nothing came to our attention that caused us to believe that the Selected
Financial Information included or incorporated by reference in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the disclosure requirements of Item 301 of
Regulation S-K of the 1933 Act [, that the amounts included in the
Selected Financial Information are not in agreement with the corresponding
amounts in the audited consolidated financial statements for the
respective periods or that the financial statements not included or
incorporated by reference in the Registration Statement and the
C-2
<PAGE> 54
Prospectus from which certain of such data were derived are not in
conformity with generally accepted accounting principles;]
(iv) we have compared the information included or incorporated by
reference in the Registration Statement and the Prospectus under selected
captions with the disclosure requirements of Regulation S-K of the 1933
Act and on the basis of limited procedures specified herein, nothing came
to our attention that caused us to believe that such information does not
comply as to form in all material respects with the disclosure
requirements of Items 302, 402 and 503(d), respectively, of Regulation
S-K;
[(v) based upon the procedures set forth in clause (ii) above, a
reading of the latest available unaudited financial statements of the
Company and the Operating Partnership that have not been included or
incorporated by reference in the Registration Statement and the Prospectus
and a review of such financial statements in accordance with SAS 71,
nothing came to our attention that caused us to believe that the unaudited
amounts for ________ for the [most recent period] do not agree with the
amounts set forth in the unaudited consolidated financial statements for
those periods or that such unaudited amounts were not determined on a
basis substantially consistent with that of the corresponding amounts in
the audited consolidated financial statements;]
[(vi) we are unable to and do not express any opinion on the [Pro
Forma Combined Balance Sheet and Statement of Operations] (collectively,
the "Pro Forma Statements") included or incorporated by reference in the
Registration Statement and the Prospectus or on the pro forma adjustments
applied to the historical amounts included in the Pro Forma Statements;
however, for purposes of this letter we have:
(A) read the Pro Forma Statements;
(B) performed [an audit] [a review in accordance with SAS 71]
of the financial statements to which the pro forma adjustments were
applied;
(C) made inquiries of certain officials of the Company and the
Operating Partnership who have responsibility for financial and
accounting matters about the basis for their determination of the
pro forma adjustments and whether the Pro Forma Statements comply as
to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X; and
(D) proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the Pro Forma
Statements; and
on the basis of such procedures and such other inquiries and procedures as
specified herein, nothing came to our attention that caused us to believe
that the Pro Forma Statements
C-3
<PAGE> 55
included or incorporated by reference in the Registration Statement and
the Prospectus do not comply as to form in all material respects with the
applicable requirements of Rule 11-02 of Regulation S-X or that the pro
forma adjustments have not been properly applied to the historical amounts
in the compilation of those statements;]
(vii) in addition to the procedures referred to in clause (ii)
above, we have performed other procedures, not constituting an audit, with
respect to certain amounts, percentages, numerical data and financial
information included or incorporated by reference in the Registration
Statement and the Prospectus, which are specified herein, and have
compared certain of such items with, and have found such items to be in
agreement with, the accounting and financial records of the Company and
the Operating Partnership; and
[(viii) in addition, we [add comfort on a financial forecast that is
included or incorporated by reference in the Registration Statement and
the Prospectus].
C-4
<PAGE> 1
EXHIBIT 4.5
INDENTURE, dated as of December 19, 1997, between CP Limited
Partnership, a Maryland limited partnership (the "Issuer"), having its principal
offices at 6430 South Quebec Street, Englewood, Colorado 80111 and The First
National Bank of Chicago, a national banking association organized under the
laws of the United States, as Trustee hereunder (the "Trustee"), having its
Corporate Trust Office at One First National Plaza, Suite 0126, Chicago, IL.
60670-0126.
RECITALS OF THE ISSUER
The Issuer deems it necessary to issue from time to time for its lawful
purposes debt securities (hereinafter called the "Securities") evidencing its
unsecured indebtedness, and has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Securities,
unlimited as to principal amount, to bear interest at the rates or formulas, to
mature at such times and to have such other provisions as shall be fixed as
hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are deemed to be incorporated into this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Issuer, 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:
(i) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(ii) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein;
<PAGE> 2
(iii) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(iv) 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.
"Additional Amounts" means any additional amounts which are required by a
Security or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Issuer in respect of certain taxes imposed on certain
Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Annual Service Charge" as of any date means the amount which is expensed
in any 12- month period for interest on Debt.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English language
or in an official language of the country of publication, customarily published
on each Business Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in each place in connection with which the
term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
"Board of Directors" means the board of directors of the General Partner
or any committee of such board of directors duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the General Partner to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
2
<PAGE> 3
"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"CEDEL" means CEDEL Bank, 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
anytime after execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body performing
such duties on such date.
"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 One First National Plaza, Suite
0126, Chicago, Illinois 60670-0126.
"corporation" includes corporations, associations, partnerships, companies
and business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of the Issuer or any Subsidiary means any indebtedness of the
Issuer or any Subsidiary, whether or not contingent, in respect of (i) borrowed
money or evidenced by bonds, notes, debentures or similar instruments, (ii)
indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any
security interest existing on property owned by the Issuer or any Subsidiary,
(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 except any such
balance that constitutes an accrued expense or trade payable or (iv) any lease
of property by the Issuer or any Subsidiary as lessee which is reflected on the
Issuer's consolidated balance sheet as a capitalized lease in accordance with
GAAP, in the case of items of indebtedness under (i) through (iii) above to the
extent that any such items (other than letters of credit) would appear as a
liability on the Issuer's consolidated balance sheet in accordance with GAAP,
and also includes, to the extent not otherwise included, any obligation by the
Issuer 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 Issuer or any
Subsidiary) (it being understood that
3
<PAGE> 4
Debt shall be deemed to be incurred by the Issuer and its Subsidiaries on a
consolidated basis whenever the Issuer and its Subsidiaries on a consolidated
basis shall create, assume, guarantee or otherwise become liable in respect
thereof).
"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.
"DTC" means The Depository Trust Company.
"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 Section 501.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU issued by the government of one
or more countries other than the United States of America or by any recognized
confederation or association of such governments.
"GAAP" means generally accepted accounting principles, as in effect from
time to time, as used in the United States applied on a consistent basis.
"General Partner" means Chateau Communities, Inc., or its successors, as
general partner, and each other as general partner from time to time of the
Issuer, collectively, acting on behalf of the Issuer in accordance with the
Partnership Agreement of the Issuer.
"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 timely 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
4
<PAGE> 5
as custodian with respect to any such Government Obligation or a specific
payment of interest on or principal of any such Government Obligation held by
such custodian for the account of the holder of a depository receipt; provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in whose
name a Security is registered in the Security Register and, in the case of a
Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established as contemplated
by Section 301; provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument, "Indenture" shall mean, with respect to
any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, shall mean interest
payable after Maturity, and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1008, includes such
Additional Amounts.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Issuer" means the Person named as the "Issuer" in the first paragraph of
this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Issuer" shall mean such
successor.
"Issuer Request" and "Issuer Order" mean, respectively, a written request
or order signed in the name of the Issuer by the General Partner's Chairman of
the Board, the President or a
5
<PAGE> 6
Vice President, and by the General Partner's Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, and delivered to the Trustee.
"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.
"Officers' Certificate" means a certificate signed by the General
Partner's 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, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Issuer or who may be an employee of or other counsel for the
Issuer 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.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Issuer) in trust or set aside and segregated in trust by
the Issuer (if the Issuer shall act as its own Paying Agent) for the
Holders of such Securities and any coupons appertaining thereto; provided
that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and
1403, with respect to which the Issuer 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 Issuer;
6
<PAGE> 7
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 Section 313 of the TIA, (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 Issuer, of the principal amount (or, in the
case of an Original Issue Discount Security, the Dollar equivalent as of such
date of original issuance of the amount determined as provided in clause (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed Outstanding for such purpose shall be equal to the principal face amount
of such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (iv) Securities owned by
the Issuer or any other obligor upon the Securities or any Affiliate of the
Issuer or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Issuer or any
other obligor upon the Securities or any Affiliate of the Issuer or of such
other obligor.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of (and premium, if any) or interest, if any, on any Securities or
coupons on behalf of the Issuer.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of or within
any series, means the place or places where the principal of (and premium, if
any) and interest, if any, 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.
7
<PAGE> 8
"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.
"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 Issuer.
8
<PAGE> 9
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation, partnership or limited liability company
a majority of the outstanding voting stock, partnership interests or membership
interests, as the case may be, of which is owned or controlled, directly or
indirectly, by the Issuer or by one or more other Subsidiaries of the Issuer.
For the purposes of this definition, "voting stock" means stock having voting
power for the election of directors, or trustees, as the case may be, 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.
"Unsecured Debt" means Debt of the Issuer or any Subsidiary which is not
secured by any mortgage, lien, charge, pledge or security interest of any kind
upon any of the properties owned by the Issuer or any of its Subsidiaries.
"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 Issuer to the Trustee to take any action under any provision of
this Indenture, the Issuer 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
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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 1007) shall include:
(i) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such individual, he
or she 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
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the General Partner 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
General Partner stating that the information as to such factual matters is in
the possession of the Issuer, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 104. Acts of Holders. (A) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. If Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Issuer. 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. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 1506.
(B) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(C) The ownership of Registered Securities shall be proved by the Security
Register.
(D) The ownership of Bearer Securities may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Issuer may assume that such ownership of any
Bearer Security continues until (i) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, (ii) such
Bearer Security is produced to the Trustee by some other Person, (iii) such
Bearer Security is surrendered in exchange for a Registered Security or (iv)
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.
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(E) If the Issuer shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Issuer 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 Issuer shall have no obligation to do so. Notwithstanding Section 316(c)
of the TIA, such record date shall be the record date specified in or pursuant
to such Board Resolution, which shall be a date not earlier than the date 30
days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(F) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Issuer in reliance
thereon, whether or not notation of such action is made upon such Security.
SECTION 105. Notices, etc., to Trustee and Issuer. 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:
(i) the Trustee by any Holder or by the Issuer shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at One First National Plaza, Suite 0126, Chicago,
Illinois 60670-0126; Attention: Corporate Trust Services Division and
(ii) the Issuer 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 Issuer
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 Issuer.
SECTION 106. Notice to Holders; Waiver. Where this Indenture provides for
notice of any event to Holders of Registered Securities by the Issuer or the
Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest
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date, prescribed for the giving of such notice. In any case where notice to
Holders of Registered Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture provides
for notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given if published in an Authorized Newspaper in New York City and
in such other city or cities as may be specified in such Securities on a
Business Day, such publication to be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. Any
such notice shall be deemed to have been given on the date of such publication
or, if published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent, waiver or
other action required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
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SECTION 108. Successors and Assigns. All covenants and agreements in this
Indenture by the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 109. Separability Clause. In case any provision in this Indenture
or in any Security or coupon shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture or in the
Securities or coupons, 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 laws 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 shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or any Security or
coupon other than a provision in the Securities of any series which specifically
states that such provision shall apply in lieu hereof), payment of interest or
any Additional Amounts or principal (and premium, if any) need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund
payment date, or at the Stated Maturity or Maturity; provided that no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
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, and the form of any guarantee shall be in substantially the forms as
shall be established in one or more indentures supplemental hereto or approved
from time to time by or pursuant to a Board Resolution in accordance 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 Issuer may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law
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or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Securities may be listed, or to
conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject to
Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The First National Bank of Chicago
as Trustee
By
--------------------------------
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (x) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Issuer Order to be delivered to the Trustee pursuant to Section 303 or
304. Subject to the provisions of Section 303 and, if applicable, Section 304,
the Trustee shall deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Issuer Order. If an Issuer Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any instructions
by the Issuer with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section 102
and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Issuer and the Issuer delivers to the Trustee the
Security in global form together with written instructions
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(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement contemplated
by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of and any premium and
interest on any Security in permanent global form shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Issuer, the Trustee and any agent of the Issuer and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security (i) in the case of a
permanent global Security in registered form, the Holder of such permanent
global Security in registered form, or (ii) in the case of a permanent global
Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited. Any Securities issued hereunder may be unconditionally
guaranteed by a guarantor to be named in an indenture supplemental hereto as to
payment of principal, premium, if any, and interest.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable, each of
which, if so provided, may be determined from time to time by the Issuer with
respect to unissued Securities of the series when issued from time to time:
(i) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(ii) the aggregate principal amount and 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, in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305, 306,
906, 1107 or 1305);
(iii) the percentage of the principal amount at which the Securities
of the series will be issued and, if other than the principal amount
thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of maturity thereof;
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(iv) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities of the series
shall be payable;
(v) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method or methods by which such date or dates shall be determined, the
Interest Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method or methods by which
such date shall be determined, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;
(vi) the Place of Payment, if any, other than or in addition to the
Borough of Manhattan, New York City, where the principal of (and premium,
if any), interest, if any, on, and Additional Amounts, if any, payable in
respect of, Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of transfer,
or exchange and notices or demands to or upon the Issuer in respect of the
Securities of the series and this Indenture may be served;
(vii) the period or periods within which, the price or prices at
which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Issuer, if the Issuer is to have the option;
(viii) the obligation, if any, of the Issuer to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period
or periods within which or the date or dates on which, the price or prices
at which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in whole
or in part, pursuant to such obligation;
(ix) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the
series shall be issuable and, if other than denominations of $5,000 and
any integral multiple thereof, the denomination or denominations in which
any Bearer Securities of the series shall be issuable;
(x) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(xi) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502 or the method by which such portion shall be determined;
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(xii) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium, if any) or interest, if
any, or Additional Amounts, if any, on the Securities of the series shall
be payable or in which the Securities of the series shall be denominated;
(xiii) whether the amount of payments of principal of (and premium,
if any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method or methods
(which index, formula or method or methods may be based, without
limitation, on one or more currencies, currency units, composite
currencies, commodities, equity indices or other indices) and the manner
in which such amounts shall be determined;
(xiv) whether the principal of (and premium, if any) or interest, if
any, or Additional Amounts, if any, on the Securities of the series are to
be payable, at the election of the Issuer 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;
(xv) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(xvi) any deletions from, modifications of or additions to the
Events of Default or covenants of the Issuer 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;
(xvii) 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 Section
305, and, if Registered Securities of the series are to be issuable as a
global Security, the identity of the depositary for such series;
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(xviii) 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;
(xix) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the manner
in which, or the Person to whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than upon presentation and
surrender of the coupons appertaining thereto as they severally mature,
and the extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 304;
(xx) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(xxi) if the Securities of the 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;
(xxii) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(xxiii) if the Securities of the series are subordinated in right of
payment to any other class or classes of Debt of the Issuer, the terms and
conditions of such subordination;
(xxiv) if the Securities of the series are to be guaranteed, the
terms and conditions of such guarantee;
(xxv) whether and under what circumstances the Issuer will pay
Additional Amounts as contemplated by Section 1008 on the Securities of
the series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Issuer will have
the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option); and
(xxvi) any other terms of the Securities 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
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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 General Partner and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the Securities
of such series.
SECTION 302. Denominations. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in denominations of $5,000
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 Issuer by the General Partner's 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 General Partner
shall bind the Issuer, 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 Issuer may deliver Securities of any series, together with any
coupon appertaining thereto, executed by the Issuer to the Trustee for
authentication, together with an Issuer Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Issuer Order
shall authenticate and deliver such Securities; provided, however, that, in
connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or CEDEL, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
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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 cancelled.
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 Issuer 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 Section 315(a) through 315(d) of the TIA) 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 Issuer to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Issuer
in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute legal, valid and binding
obligations of the Issuer, enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency, reorganization
and other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights generally and to
general equitable principles; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of the
Securities have been complied with and that, to the best of the knowledge
of the signers of such certificate, 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
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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 an Issuer Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Issuer, and the Issuer shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Issuer, 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 Issuer may execute, and upon Issuer
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form, or, if authorized, in
bearer form with one or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 304(B) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Issuer 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 Issuer 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
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<PAGE> 23
(accompanied by any nonmatured coupons appertaining thereto), the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
(B) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 304(B) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of DTC. If any such temporary
Security is issued in global form, then such temporary global Security shall,
unless otherwise provided therein, be delivered to the London office of a
depositary or common depositary (the "Common Depositary"), for the benefit of
Euroclear and CEDEL, for credit to the respective accounts of the beneficial
owners of such Securities (or to such other accounts as they may direct).
Without unnecessary delay, but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Issuer shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Issuer. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Issuer'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 Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
CEDEL, as the case may be, to request such exchange on his
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<PAGE> 24
behalf and delivers to Euroclear or CEDEL, as the case may be, a certificate in
the form set forth in Exhibit A-1 to this Indenture (or in such other form as
may be established pursuant to Section 301), dated no earlier than 15 days prior
to the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise specified
in such temporary global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
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 Issuer.
SECTION 305. Registration, Registration of Transfer and Exchange. The
Issuer shall cause to be kept at the Corporate Trust Office of the Trustee or in
any office or agency of the Issuer 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 Issuer in a Place of Payment being herein sometimes
referred to collectively as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of
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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 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 Issuer in a Place of Payment for that series, the Issuer 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 Issuer 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 Issuer 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
Issuer and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to any Paying Agent any
such missing coupon in respect of which such a payment shall have been made,
such Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender of
those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business
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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 Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such global Security selected or approved by the Issuer or to a nominee of such
successor to DTC. If at any time DTC notifies the Issuer that it is unwilling or
unable to continue as depositary for the applicable global Security or
Securities or if at any time DTC ceases to be a clearing agency registered under
the Exchange Act if so required by applicable law or regulation, the Issuer
shall appoint a successor depositary with respect to such global Security or
Securities. If (i) a successor depositary for such global Security or Securities
is not appointed by the Issuer within 90 days after the Issuer receives such
notice or becomes aware of such unwillingness, inability or ineligibility, (ii)
an Event of Default has occurred and is continuing and the beneficial owners
representing a majority in principal amount of the applicable series of
Securities represented by such global Security or Securities advise DTC to cease
acting as depositary for such global Security or Securities or (iii) the Issuer,
in its sole discretion, determines at any time that all Outstanding Securities
(but not less than all) of any series issued or issuable in the form of one or
more global Securities shall no longer be represented by such global Security or
Securities, then the Issuer 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
Issuer shall execute, and the Trustee shall authenticate and deliver definitive
Securities in aggregate principal amount equal to the principal amount of such
beneficial owner's interest in such permanent global Security. On or after the
earliest date on which such interests may be so exchanged, such permanent global
Security shall be surrendered for exchange by DTC or such other depositary as
shall be specified in the Issuer Order with respect thereto to the Trustee, as
the Issuer'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
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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 (i) after the
close of business at the office or agency where such exchange occurs on any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date or (ii) after the close of business at the
office or agency where such exchange occurs on 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 Issuer, 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 Issuer or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Issuer 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 Issuer 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 Issuer 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, (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, (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
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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 Issuer, together with, in proper cases, such
security or indemnity as may be required by the Issuer or the Trustee to hold
each of them or any agent of either of them harmless, the Issuer 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 Issuer and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon and (ii) such security or indemnity as may be required by them to hold
each of them and any agent of either of them harmless, then, in the absence of
notice to the Issuer or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Issuer 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 Issuer 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, if any),
any interest on and any Additional Amounts with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the Issuer 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 Issuer,
whether or not the destroyed, lost or stolen Security and its coupons,
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if any, or the destroyed, lost or stolen coupon shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved. Except as
otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Issuer maintained
for such purpose pursuant to Section 1002; provided, however, that each
installment of interest on any Registered Security may at the Issuer'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 Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency where such exchange occurs) 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 Issuer, at its election in each case, as
provided in clause (i) or (ii) below:
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(i) the Issuer 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 Issuer 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 Issuer 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 provided in this clause. 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 Issuer of such Special Record Date and, in the name and at the
expense of the Issuer, 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 Issuer, 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 (ii). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after the
close of business at such office or agency on any Special Record Date and
before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such proposed date
of payment in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this Indenture; or
(ii) the Issuer 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 Issuer to the Trustee
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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, 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 Issuer, the Trustee and
any agent of the Issuer or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any), and (subject to
Sections 305 and 307) interest, if any, on, such Registered Security and for all
other purposes whatsoever, whether or not such Registered Security be overdue,
and neither the Issuer, the Trustee nor any agent of the Issuer or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Issuer, the Trustee and any agent of the Issuer 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 Issuer, the
Trustee nor any agent of the Issuer or the Trustee shall be affected by notice
to the contrary.
None of the Issuer, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer
or the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with respect to such
global Security or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as
Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by it;
provided, however, where the Place of Payment is located outside of the United
States, the Paying Agent at such Place of Payment may cancel the Securities
surrendered to it for such purposes prior to delivering the Securities to the
Trustee. The Issuer may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Issuer may
have acquired in any manner whatsoever, and may deliver to the Trustee
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(or to any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Issuer has not issued
and sold, and all Securities so delivered shall be promptly cancelled by the
Trustee. If the Issuer 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 Issuer,
unless by an Issuer Order the Issuer directs their return to it.
SECTION 310. Computation of Interest. Except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year consisting of 12 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture shall
upon Issuer Request cease to be of further effect with respect to any series of
Securities specified in such Issuer Request (except as to any surviving rights
of registration of transfer or exchange of Securities of such series herein
expressly provided for and any right to receive Additional Amounts, as provided
in Section 1008), and the Trustee, upon receipt of an Issuer Order, and at the
expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series when
(i) 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 Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
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(b) all Securities of such series and, in the case of (1) or
(2) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(1) have become due and payable,
(2) will become due and payable at their Stated Maturity
within one year, or
(3) if redeemable at the option of the Issuer, 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 Issuer,
and the Issuer, in the case of (1), (2) or (3) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount in the currency or
currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and interest,
if any, and any Additional Amounts with respect thereto, to the date
of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(ii) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(iii) the Issuer 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 Issuer to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Issuer 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 (i) 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 Issuer acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium, if any), and interest, if any, and Additional
Amounts for whose payment such money has been deposited with or received by the
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Trustee, but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever used herein
with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) default in the payment of any interest on or any Additional
Amounts payable in respect of any Security of that series or of any coupon
appertaining thereto, when such interest, Additional Amounts or coupon
becomes due and payable, and continuance of such default for a period of
30 days;
(ii) default in the payment of the principal of (or premium, if any,
on) any Security of that series when it becomes due and payable at its
Maturity;
(iii) default in the deposit of any sinking fund payment, when and
as due by the terms of any Security of that series;
(iv) default in the performance, or breach, of any covenant or
warranty of the Issuer 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
Issuer by the Trustee or to the Issuer 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;
(v) default under any evidence of recourse indebtedness of the
Issuer, or under any mortgage, indenture or other instrument of the Issuer
(including a default with respect to Securities of any series other than
that series) under which there may be issued or by which there may be
secured any recourse indebtedness of the Issuer (or by any Subsidiary, the
repayment of which the Issuer has guaranteed or for which the Issuer is
directly responsible or liable as obligor or guarantor), whether such
indebtedness now exists or shall hereafter be created, which default shall
constitute a failure to pay an aggregate principal amount exceeding
$10,000,000 of such indebtedness when due and payable after the expiration
of any applicable grace period with respect thereto and shall have
resulted in such indebtedness in an aggregate principal amount exceeding
$10,000,000 becoming or being declared due and payable prior to the date
on which it
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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 Issuer by the Trustee or to the
Issuer 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 Issuer 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;
(vi) the Issuer 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;
(vii) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that remains unstayed and in effect for 90 days,
and:
(a) is for relief against the Issuer or any Significant
Subsidiary in an involuntary case,
(b) appoints a Custodian of the Issuer or any Significant
Subsidiary or for all or substantially all of either of its
property, or
(c) orders the liquidation of the Issuer or any Significant
Subsidiary; or
(viii) 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 of the
United States Code or any similar Federal or State law for the relief of debtors
and the term "Custodian" means any receiver, trustee, assignee, liquidator or
other similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any
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Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Issuer (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 Issuer and the
Trustee, may rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay in the currency or currency unit or composite currency
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series):
(a) all overdue installments of interest on and any Additional
Amounts payable in respect of all Outstanding Securities of that
series and any related coupons,
(b) the principal of (and premium, if any, on) any Outstanding
Securities of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate or
rates borne by or provided for in such Securities,
(c) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and any Additional
Amounts at the rate or rates borne by or provided for in such
Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(ii) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium, if any)
or interest, if any, on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Issuer covenants that if:
(i) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Security of any series and any related
coupon when such
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interest or Additional Amount becomes due and payable and such default
continues for a period of 30 days, or
(ii) default is made in the payment of the principal of (or premium,
if any, on) any Security of any series at its Maturity,
then the Issuer will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, and Additional Amounts, with interest
upon any overdue principal (and premium, if any) and, to the extent that payment
of such interest shall be legally enforceable, upon any overdue installments of
interest or Additional Amounts, if any, at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Issuer 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 Issuer 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 Issuer 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 effective 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 Issuer or any other obligor upon the Securities or the property of the
Issuer or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Issuer for the payment of
overdue principal, premium, if any, or interest, if any) 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, if any) and interest, if any, and Additional
Amounts, if any, owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim
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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.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
or Coupons. All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, if any, and any
Additional Amounts, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: to the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: to the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest,
if any, and any Additional Amounts payable, in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the aggregate amounts due
and payable on such Securities and coupons for principal (and premium, if
any), interest and Additional Amounts, respectively; and
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THIRD: to the payment of the remainder, if any, to the Issuer.
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:
(i) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(ii) 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;
(iii) 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;
(iv) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(v) 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 whatsoever by virtue of, or by availing to, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, 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,
if any, Interest and Additional Amounts. Notwithstanding any other provision in
this Indenture, the Holder of any Security or coupon shall have the right which
is absolute and unconditional to receive payment of the principal of (and
premium, if any) and (subject to Sections 305 and 307) interest, if any, on, and
any Additional Amounts in respect of, such Security or payment of such coupon on
the respective due dates expressed in such Security or coupon (or, in the case
of redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, the Issuer, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
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proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities or coupons is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
SECTION 512. Control by Holders of Securities. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series;
provided that:
(i) such direction shall not be in conflict with any rule of law or
with this Indenture;
(ii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(iii) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities
of such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default:
(i) in the payment of the principal of (or premium, if any) or
interest on, or Additional Amounts payable in respect of, any Security of
such series or any related coupons; or
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(ii) 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 Issuer 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 Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of any undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest,
if any, on any Security on or after the respective Stated Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
ARTICLE 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 Section 313(c) of the
TIA, notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest,
if any, on or any Additional Amounts with respect to any Security of such
series, or in the payment of any sinking fund installment with respect to the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the
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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(iv) 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
Section 315(a) through 315(d) of the TIA:
(i) 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;
(ii) any request or direction of the Issuer mentioned herein shall
be sufficiently evidenced by an Issuer Request or Issuer Order (other than
delivery of any Security, together with any coupons appertaining thereto,
to the Trustee for authentication and delivery pursuant to Section 303
which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Trustees may be sufficiently evidenced by a
Board Resolution;
(iii) 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;
(iv) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(v) 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;
(vi) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine
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the books, records and premises of the Issuer, personally or by agent or
attorney following reasonable notice to the Issuer. The reasonable
expenses of every such examination shall be paid by the Issuer or, if paid
by the Trustee, shall be repaid by the Issuer upon demand;
(vii) The Trustee shall not be deemed to have knowledge of a default
or an Event of Default, other than an Event of Default specified in
Section 501(i), (ii) or (iii), unless and until it receives written
notification of such Event of Default form the Issuer or by holders of not
less than 25% of the aggregate principal amount of the Securities at the
time Outstanding;
(viii) 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
(ix) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
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. During the continuance of an Event of Default
(which has not been cured or waived), the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs.
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 Issuer, 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
Issuer 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 Issuer, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to Sections
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310(b) and 311 of the TIA, may otherwise deal with the Issuer 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 Issuer.
SECTION 606. Compensation and Reimbursement. The Issuer agrees:
(i) 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);
(ii) except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(iii) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its own part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(vi) or Section 501(vii), 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 Issuer under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of (or premium, if any) or interest, if
any, on particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
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 Section 310(a)(1) of the TIA and shall have a
combined capital and surplus of at least
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$50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or the requirements of Federal, State, Territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 608. Resignation and Removal; Appointment of Successor. (A) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(B) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Issuer. 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
Issuer.
(D) If at any time:
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the TIA after written request therefor by the Issuer or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(ii) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Issuer or by
any Holder of a Security who has been a bona fide Holder of a Security for
at least six months, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer 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 Section 315(e) of the TIA, any Holder of a
Security who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
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(E) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Issuer, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). If, within one year after
such resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Issuer 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 Issuer. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Issuer 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 Issuer shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series in the manner
provided for notices to the Holders of Securities in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (A) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Issuer 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 Issuer 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 Issuer, 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 (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed
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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 (iii) 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 Trustee's 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 Issuer 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 Issuer shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (A) or (B) of this Section, as the case may be.
(D) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder; provided that such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities or coupons shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities or coupons so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities or coupons, in either its own name or
that of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when any of
the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Securities so authenticated shall be entitled to
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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
Issuer. 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 Issuer 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.
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 Issuer. 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 Issuer. 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 Issuer 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 Issuer 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.
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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.
The First National Bank of Chicago
as Trustee
By: ,
----------------------------------
as Authenticating Agent
By:
----------------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. Disclosure of Names and Addresses of Holders. Every Holder of
Securities or coupons, by receiving and holding the same, agrees with the Issuer
and the Trustee that neither the Issuer 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 Section 312 of the TIA, 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 Section 312(b) of the TIA.
SECTION 702. Reports by Trustee. Within 60 days after May 15 of each year
commencing with the first May 15 after the first issuance of Securities pursuant
to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in Section 313(c) of the TIA a brief report dated as of
such May 15 if required by Section 313(a) of the TIA.
SECTION 703. Reports by Issuer. The Issuer will:
(i) 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 Issuer with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
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(ii) 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 Section 313(c) of the TIA, such summaries of any information,
documents and reports required to be filed by the Issuer pursuant to
Section 1006 and paragraph (i) of this Section as may be required by rules
and regulations prescribed from time to time by the Commission.
SECTION 704. Issuer to Furnish Trustee Names and Addresses of Holders. The
Issuer will furnish or cause to be furnished to the Trustee:
(i) 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
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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
(ii) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Issuer 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 Issuer and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions. The Issuer may consolidate
with, or sell, lease or convey all or substantially all of its assets to, or
merge with or into any other corporation; provided that in any such case, (i)
either the Issuer shall be the continuing corporation, or the successor
corporation shall be a corporation organized and existing under the laws of the
United States or a State thereof and such successor corporation shall expressly
assume the due and punctual payment of the principal of (and premium, if any)
and any interest (including all Additional Amounts, if any, payable pursuant to
Section 1008) 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 Issuer by supplemental indenture,
complying with Article Nine hereof, satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation and (ii) immediately after giving
effect to such transaction and treating any indebtedness which becomes an
obligation of the Issuer or any Subsidiary as a result thereof as having been
incurred by the Issuer 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 Issuer, 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 Issuer, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Issuer, 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 Issuer to the Trustee for authentication, and any Securities which
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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.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders. Without
the consent of any Holders of Securities or coupons, the Issuer, 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:
(i) to evidence the succession of another Person to the Issuer and
the assumption by any such successor of the covenants of the Issuer herein
and in the Securities contained;
(ii) to add to the covenants of the Issuer 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
Issuer;
(iii) 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
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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;
(iv) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form; provided that any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect;
(v) 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;
(vi) to secure the Securities;
(vii) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301;
(viii) 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;
(ix) 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
(x) 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 Issuer and the Trustee, the Issuer, 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
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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:
(i) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of principal of or interest on, any Security,
or reduce the principal amount thereof or the rate or amount of interest
thereon or any Additional Amounts payable in respect thereof, or any
premium payable upon the redemption thereof, or change any obligation of
the Issuer to pay Additional Amounts pursuant to Section 1008 (except as
contemplated by Section 801(i) and permitted by Section 901(i)), 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
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);
(ii) 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
(iii) 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.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the
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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 TIA as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any such supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, Interest and
Additional Amounts. The Issuer 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, if any) and interest, if any, on and any Additional
Amounts payable in respect of the Securities of that series in accordance with
the terms of such series of Securities, any coupons appertaining thereto and
this Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of Bearer Securities on or before Maturity, other
than Additional Amounts, if any, payable as provided in Section 1008 in respect
of principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless otherwise
specified with respect to Securities of any series pursuant to Section 301, at
the option of the Issuer, all payments of principal may be paid by check to the
registered Holder of the Registered Security or other person entitled thereto
against surrender of such Security.
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SECTION 1002. Maintenance of Office or Agency. If Securities of a series
are issuable only as Registered Securities, the Issuer 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 Issuer 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 Issuer will maintain: (i) in the
Borough of Manhattan, New York City, 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 Issuer 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); (ii)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series which is located outside the United States, an office or agency
where Securities of that series and related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Securities of that series pursuant to Section 1008); provided, however, that if
the Securities of that series are listed on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Issuer will maintain a Paying Agent for the Securities of
that series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange; and (iii) 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 Issuer in
respect of the Securities of that series and this Indenture may be served. The
Issuer 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 Issuer
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series pursuant to
Section 1008) at the offices specified in the Security, in London, England, and
the Issuer hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands, and the Issuer hereby appoints
the Trustee its agent to receive all such presentations, surrenders, notices and
demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the Issuer in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States; provided, however, that, if the Securities of a series are payable in
Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any Additional Amounts payable on Securities of such series
pursuant to Section 1008) shall be made at the office of the designated agent of
the Issuer's Paying Agent in the
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Borough of Manhattan, New York City, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or Additional Amounts, as the
case may be, at all offices or agencies outside the United States maintained for
the purpose by the Issuer in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Issuer 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 Issuer 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 Issuer 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 Issuer hereby designates as a Place of Payment for each series of Securities
the office or agency of the Issuer in the Borough of Manhattan, New York City,
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 Issuer
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
Issuer shall at any time act as its own Paying Agent with respect to any series
of any Securities and any related coupons, it will, on or before each due date
of the principal of (and premium, if any), or interest on or Additional Amounts
in respect of, any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal (and premium, if any) or interest or Additional Amounts so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Issuer shall have one or more Paying Agents for any series of
Securities and any related coupons, it will, before each due date of the
principal of (and premium, if any), or interest on or Additional Amounts in
respect of, any Securities of that series, deposit with a Paying Agent a sum (in
the currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the principal
(and premium, if any) or interest or Additional Amounts, so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest or Additional Amounts and (unless such Paying
Agent is the Trustee) the Issuer will promptly notify the Trustee of its action
or failure so to act.
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The Issuer will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(i) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Securities or Additional Amounts 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;
(ii) give the Trustee notice of any default by the Issuer (or any
other obligor upon the Securities) in the making of any such payment of
principal (and premium, if any) or interest or Additional Amounts; and
(iii) 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 Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Issuer
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Issuer 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 Issuer or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Issuer, in
trust for the payment of the principal of (and premium, if any) or interest, if
any, on, or any Additional Amounts in respect of, any Security of any series and
remaining unclaimed for two years after such principal (and premium, if any),
interest or Additional Amounts has become due and payable shall be paid to the
Issuer upon Issuer Request or (if then held by the Issuer) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment of such
principal of (and premium, if any) or interest, if any, on, or any Additional
Amounts in respect of, any Security, without interest thereon, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Issuer 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 Issuer 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 Issuer.
SECTION 1004. Existence. Subject to Article Eight, the Issuer will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights and franchises; provided, however, that the Issuer
shall not be required to preserve any right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer
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desirable in the conduct of the business of the Issuer and that the loss thereof
is not disadvantageous in any material respect to the Holders.
SECTION 1005. Payment of Taxes and Other Claims. The Issuer will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of the
Issuer or any Subsidiary, and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Issuer or any Subsidiary; provided, however, that the Issuer 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 1006. Provision of Financial Information. Whether or not the
Issuer is subject to Section 13 or 15(d) of the Exchange Act and for so long as
any Securities are outstanding, the Issuer will, to the extent permitted under
the Exchange Act, file with the Commission the annual reports, quarterly reports
and other documents which the Issuer would have been required to file with the
Commission pursuant to such Section 13 or 15(d) (the "Financial Statements") if
the Issuer 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 Issuer
would have been required so to file such documents if the Issuer were so
subject.
The Issuer will also in any event (i) within 15 days of each Required
Filing Date (a) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, without cost to such Holders copies of the
annual reports and quarterly reports which the Issuer would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if the Issuer were subject to such Sections and (b) file with the Trustee copies
of the annual reports, quarterly reports and other documents which the Issuer
would have been required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act if the Issuer were subject to such Sections and (ii)
if filing such documents by the Issuer 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 1007. Statement as to Compliance. The Issuer will deliver to the
Trustee, within 120 days after the end of each fiscal year, a brief certificate
from the General Partner's principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Issuer'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 1007, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1008. Additional Amounts. If any Securities of a series provide
for the payment of Additional Amounts, the Issuer will pay to the Holder of any
Security of such series or any coupon appertaining thereto Additional Amounts as
may be specified as contemplated by Section 301. Whenever in this Indenture
there is mentioned, in any context except in the case of Section 502(i), the
payment of the principal of or any premium or interest on, or in respect
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of, any Security of any series or payment of any related coupon or the net
proceeds received on the sale or exchange of any Security of any series, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided by the terms of such series established pursuant to Section 301 to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Issuer will furnish the
Trustee and the Issuer's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Issuer will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. If the Trustee or any Paying Agent, as the case may be,
shall not so receive the above-mentioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of a series or related coupons until it shall have
received a certificate advising otherwise and (ii) to make all payments of
principal and interest with respect to the Securities of a series or related
coupons without withholding or deductions until otherwise advised. The Issuer
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the Issuer's
not furnishing such an Officers' Certificate.
SECTION 1009. Waiver of Certain Covenants. The Issuer 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 Issuer and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
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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
Issuer to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Issuer of less than
all of the Securities of any series, the Issuer shall, at least 45 days prior to
the giving of the notice of redemption in Section 1104 (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Issuer 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 Issuer 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
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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:
(i) the Redemption Date,
(ii) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if
any,
(iii) 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,
(iv) 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,
(v) 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,
(vi) 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,
(vii) that the redemption is for a sinking fund, if such is the
case,
(viii) 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 Issuer, the Trustee for such series and any Paying
Agent is furnished,
(ix) 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 Issuer, on which such
exchanges may be made, and
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(x) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed shall be given by the
Issuer or, at the Issuer's request, by the Trustee in the name and at the
expense of the Issuer.
SECTION 1105. Deposit of Redemption Price. At least one Business Day prior
to any Redemption Date, the Issuer shall deposit with the Trustee or with a
Paying Agent (or, if the Issuer 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 Issuer 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 Issuer at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and provided further that installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Issuer 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
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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, 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 Issuer or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing) and
the Issuer shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of such Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. The
Issuer may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of a series, (i) 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 (ii) apply as a credit Securities of such
series which have been redeemed either at the election of the Issuer 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
Issuer; provided that such Securities so delivered or applied as
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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
Issuer 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 Issuer 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
Issuer in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series subject to
repayment in whole or in part at the option of the Holders thereof will, unless
otherwise provided in the terms of such Securities, be repaid at a price equal
to the principal amount thereof, together with interest, if any, thereon accrued
to the Repayment Date specified in or pursuant to the terms of such Securities.
The Issuer covenants that at least one Business Day prior to the Repayment Date
it will deposit with the Trustee or with a Paying Agent (or, if the Issuer 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
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(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 Issuer 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 (i) 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 (ii) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, or the National Association of Securities Dealers, Inc., or
a commercial bank or trust company in the United States setting forth the name
of the Holder of the Security, the principal amount of the Security, the
principal amount of the Security to be repaid, the CUSIP number, if any, or a
description of the tenor and terms of the Security, a statement that the option
to elect repayment is being exercised thereby and a guarantee that the Security
to be repaid, together with the duly completed form entitled "Option to Elect
Repayment" on the reverse of the Security, will be received by the Trustee not
later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter; provided, however, that such telegram, telex,
facsimile transmission or letter shall only be effective if such Security and
form duly completed are received by the Trustee by such fifth Business Day. If
less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for Securities
of such series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the principal amount of
such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Issuer.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Issuer on the Repayment Date therein specified,
and on and after such Repayment Date (unless the Issuer 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 Issuer, together with accrued
interest, if
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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 Issuer shall default in the payment thereof) to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1302 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Issuer 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 Issuer shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Issuer, 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.
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ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Issuer's Option to Effect
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision is
made for either or both of (i) defeasance of the Securities of or within a
series under Section 1402 or (ii) 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 Issuer may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. Defeasance and Discharge. Upon the Issuer's exercise of the
above option applicable to this Section with respect to any Securities of or
within a series, the Issuer 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 Issuer 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 (i) and (ii) 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 Issuer, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) 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,
if any) and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (ii) the Issuer's obligations with respect
to such Securities under Sections 305, 306, 1002 and 1003 and with respect to
the payment of Additional Amounts, if any, on such Securities as contemplated by
Section 1008, (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (iv) this Article. Subject to compliance with this Article
Fourteen, the Issuer 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 Issuer's exercise of the above
option applicable to this Section with respect to any Securities of or within a
series, the Issuer shall be released from its obligations under Sections 1004 to
1009, inclusive, and, if specified pursuant to Section 301, its obligations
under any other covenant, with respect to such Outstanding Securities and any
coupons appertaining thereto on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "covenant defeasance"), and such
Securities
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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 Issuer may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such Section or such other covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other covenant to
any other provision herein or in any other document and such omission to comply
shall not constitute a default or an Event of Default under Section 501(iv) or
501(viii) 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:
(i) The Issuer 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, (i) an amount in such currency, currencies or currency unit in which
such Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity, (ii) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on the basis of the
currency, currencies or currency unit in which such Securities and coupons
appertaining thereto are then specified as payable at Stated Maturity) which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due
date of any payment of principal of (and premium, if any) and interest, if any,
on such Securities and any coupons appertaining thereto, money in an amount, or
(iii) 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, 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.
(ii) 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 Issuer is a party or by which it
is bound.
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(iii) 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(vi) and 501(vii) 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).
(iv) In the case of an election under Section 1402, the Issuer shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer 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.
(v) In the case of an election under Section 1403, the Issuer 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.
(vi) The Issuer 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 (a) as a result of a deposit pursuant to
subsection (i) above and the related exercise of the Issuer'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 Issuer, with
respect to the trust funds representing such deposit or by the Trustee for such
trust funds or (b) all necessary registrations under said Act have been
effected.
(vii) 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 Issuer in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or
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through any Paying Agent (including the Issuer 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, if any) and interest and Additional Amounts, if any, but
such money need not be segregated from other funds except to the extent required
by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(i) has been made,
(i) 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(i) has been made in respect of such
Security or (ii) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(i) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any), and
interest, if any, on such Security as the same becomes due out of the proceeds
yielded by 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 Issuer 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 Issuer from time to time
upon Issuer Request any money or Government Obligations (or other property and
any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent,
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waiver or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings. (A) The Trustee may at
any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 1501, to be held at such time and at such place in the
Borough of Manhattan, New York City, or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(B) In case at any time the Issuer, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Issuer or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, New York City, or in London for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection A. of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled to vote
at any meeting of Holders of Securities of any series, a Person shall be (i) a
Holder of one or more Outstanding Securities of such series or (ii) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Issuer 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
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(A), except that such notice
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need be given only once not less than five days prior to the date on which the
meeting is scheduled to be reconvened. Notice of the reconvening of any
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the 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.
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
73
<PAGE> 74
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 Issuer
or by Holders of Securities as provided in Section 1502(B), in which case the
Issuer or the Holders of Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(C) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of the Outstanding
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(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 Issuer 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.
74
<PAGE> 75
* * * * *
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.
75
<PAGE> 76
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
CP LIMITED PARTNERSHIP
By: Chateau Communities, Inc.,
one of its general partners
By:
---------------------------------
Name:
Title:
By: ROC Communities, Inc., its
other general partner
By:
---------------------------------
Name:
Title:
The First National Bank of Chicago
as Trustee
By:
---------------------------------
Name:
Title:
Attest:
- ---------------------------------
Name:
Title:
Attest:
- ---------------------------------
Name:
Title:
76
<PAGE> 77
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
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 CP Limited Partnership or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and 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
A-1
<PAGE> 78
correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
This certificate excepts and does not relate to U.S.$ _______________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: __________________, 19__
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making Certification]
--------------------------------------------
(Authorized Signatory)
Name:
Title:
A-2
<PAGE> 79
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] _______________
principal amount of the above-captioned Securities (i) is owned by person(s)
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in 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 CP Limited Partnership
or its agent that such financial institution will comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations
A-3
<PAGE> 80
with respect to any portion of the part submitted herewith for exchange (or, if
relevant, collection of any interest) are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: _____________ 19__
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[ ]
as Operator of the Euroclear System [CEDEL S.A.]
By:
---------------------------------------------
A-4
<PAGE> 81
================================================================================
CP LIMITED PARTNERSHIP
Issuer
TO
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
INDENTURE
Dated as of December 19, 1997
Debt Securities
================================================================================
<PAGE> 82
TABLE OF CONTENTS
Page
PARTIES.................................................................... 1
RECITALS OF THE ISSUER..................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions................................................. 1
Act................................................................. 2
Additional Amounts.................................................. 2
Affiliate........................................................... 2
Annual Service Charge............................................... 2
Authenticating Agent................................................ 2
Authorized Newspaper................................................ 2
Bankruptcy Law...................................................... 2
Bearer Security..................................................... 2
Board of Directors.................................................. 2
Board Resolution.................................................... 2
Business Day........................................................ 2
CEDEL............................................................... 3
Commission.......................................................... 3
Conversion Event.................................................... 3
Corporate Trust Office.............................................. 3
corporation......................................................... 3
coupon.............................................................. 3
Custodian........................................................... 3
Debt................................................................ 3
Defaulted Interest.................................................. 4
Dollar or $......................................................... 4
DTC................................................................. 4
ECU................................................................. 4
Euroclear........................................................... 4
European Communities................................................ 4
European Monetary System............................................ 4
Event of Default.................................................... 4
Foreign Currency.................................................... 4
GAAP................................................................ 4
General Partner..................................................... 4
Government Obligations.............................................. 4
Holder.............................................................. 5
Indenture........................................................... 5
Indexed Security.................................................... 5
Interest............................................................ 5
i
<PAGE> 83
Interest Payment Date............................................... 5
Issuer.............................................................. 5
Issuer Request and Issuer Order..................................... 5
Maturity............................................................ 6
Officers' Certificate............................................... 6
Opinion of Counsel.................................................. 6
Original Issue Discount Security.................................... 6
Outstanding......................................................... 6
Paying Agent........................................................ 7
Person.............................................................. 7
Place of Payment.................................................... 7
Predecessor Security................................................ 7
Redemption Date..................................................... 8
Redemption Price.................................................... 8
Registered Security................................................. 8
Regular Record Date................................................. 8
Repayment Date...................................................... 8
Repayment Price..................................................... 8
Responsible Officer................................................. 8
Security............................................................ 8
Security Register and Security Registrar............................ 8
Significant Subsidiary.............................................. 8
Special Record Date................................................. 9
Stated Maturity..................................................... 9
Subsidiary.......................................................... 9
Trust Indenture Act or TIA.......................................... 9
Trustee............................................................. 9
United States....................................................... 9
Unsecured Debt...................................................... 9
Yield to Maturity................................................... 9
SECTION 102. Compliance Certificates and Opinions........................ 9
SECTION 103. Form of Documents Delivered to Trustee...................... 10
SECTION 104. Acts of Holders............................................. 11
SECTION 105. Notices, etc., to Trustee and Issuer........................ 12
SECTION 106. Notice to Holders; Waiver................................... 12
SECTION 107. Effect of Headings and Table of Contents.................... 13
SECTION 108. Successors and Assigns...................................... 14
SECTION 109. Separability Clause......................................... 14
SECTION 110. Benefits of Indenture....................................... 14
SECTION 111. Governing Law............................................... 14
SECTION 112. Legal Holidays.............................................. 14
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities......................................... 14
SECTION 202. Form of Trustee's Certificate of Authentication............. 15
ii
<PAGE> 84
SECTION 203. Securities Issuable in Global Form.......................... 15
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series........................ 16
SECTION 302. Denominations............................................... 20
SECTION 303. Execution, Authentication, Delivery and Dating.............. 20
SECTION 304. Temporary Securities........................................ 22
SECTION 305. Registration, Registration of Transfer and Exchange......... 24
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............ 28
SECTION 307. Payment of Interest; Interest Rights Preserved.............. 29
SECTION 308. Persons Deemed Owners....................................... 31
SECTION 309. Cancellation................................................ 31
SECTION 310. Computation of Interest..................................... 32
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture..................... 32
SECTION 402. Application of Trust Funds.................................. 33
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default........................................... 34
SECTION 502. Acceleration of Maturity; Rescission and Annulment.......... 35
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee..................................................... 36
SECTION 504. Trustee May File Proofs of Claim............................ 37
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons....................................... 38
SECTION 506. Application of Money Collected.............................. 38
SECTION 507. Limitation on Suits......................................... 39
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium, if any, Interest and Additional Amounts............ 39
SECTION 509. Restoration of Rights and Remedies.......................... 39
SECTION 510. Rights and Remedies Cumulative.............................. 40
SECTION 511. Delay or Omission Not Waiver................................ 40
SECTION 512. Control by Holders of Securities............................ 40
SECTION 513. Waiver of Past Defaults..................................... 40
SECTION 514. Waiver of Usury, Stay or Extension Laws..................... 41
SECTION 515. Undertaking for Costs....................................... 41
ARTICLE SIX
THE TRUSTEE
iii
<PAGE> 85
SECTION 601. Notice of Defaults.......................................... 41
SECTION 602. Certain Rights of Trustee................................... 42
SECTION 603. Not Responsible for Recitals or Issuance of Securities...... 43
SECTION 604. May Hold Securities......................................... 43
SECTION 605. Money Held in Trust......................................... 44
SECTION 606. Compensation and Reimbursement.............................. 44
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests................................................... 44
SECTION 608. Resignation and Removal; Appointment of Successor........... 45
SECTION 609. Acceptance of Appointment by Successor...................... 46
SECTION 610. Merger, Conversion, Consolidation or Succession to Business. 47
SECTION 611. Appointment of Authenticating Agent......................... 47
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. Disclosure of Names and Addresses of Holders................ 49
SECTION 702. Reports by Trustee.......................................... 49
SECTION 703. Reports by Issuer........................................... 49
SECTION 704. Issuer to Furnish Trustee Names and Addresses of Holders.... 50
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Issuer and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions......... 51
SECTION 802. Rights and Duties of Successor Corporation.................. 51
SECTION 803. Officers' Certificate and Opinion of Counsel................ 52
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.......... 52
SECTION 902. Supplemental Indentures with Consent of Holders............. 53
SECTION 903. Execution of Supplemental Indentures........................ 54
SECTION 904. Effect of Supplemental Indentures........................... 55
SECTION 905. Conformity with Trust Indenture Act......................... 55
SECTION 906. Reference in Securities to Supplemental Indentures.......... 55
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, Interest and
Additional Amounts......................................... 55
SECTION 1002. Maintenance of Office or Agency............................ 56
iv
<PAGE> 86
SECTION 1003. Money for Securities Payments to Be Held in Trust.......... 57
SECTION 1004. Existence.................................................. 58
SECTION 1005. Payment of Taxes and Other Claims.......................... 59
SECTION 1006. Provision of Financial Information......................... 59
SECTION 1007. Statement as to Compliance................................. 59
SECTION 1008. Additional Amounts......................................... 59
SECTION 1009. Waiver of Certain Covenants................................ 60
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article................................... 61
SECTION 1102. Election to Redeem; Notice to Trustee...................... 61
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.......... 61
SECTION 1104. Notice of Redemption....................................... 61
SECTION 1105. Deposit of Redemption Price................................ 63
SECTION 1106. Securities Payable on Redemption Date...................... 63
SECTION 1107. Securities Redeemed in Part................................ 64
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article................................... 64
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities...... 64
SECTION 1203. Redemption of Securities for Sinking Fund.................. 65
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article................................... 65
SECTION 1302. Repayment of Securities.................................... 65
SECTION 1303. Exercise of Option......................................... 66
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable.................................................... 66
SECTION 1305. Securities Repaid in Part.................................. 67
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Issuer's Option to Effect
Defeasance or Covenant Defeasance.......................... 68
SECTION 1402. Defeasance and Discharge................................... 68
SECTION 1403. Covenant Defeasance........................................ 68
SECTION 1404. Conditions to Defeasance or Covenant Defeasance............ 69
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust;
v
<PAGE> 87
Other Miscellaneous Provisions............................. 70
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.................. 71
SECTION 1502. Call, Notice and Place of Meetings......................... 72
SECTION 1503. Persons Entitled to Vote at Meetings....................... 72
SECTION 1504. Quorum; Action............................................. 72
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings................................................... 73
SECTION 1506. Counting Votes and Recording Action of Meetings............ 74
EXHIBIT
Forms of Certificates EXHIBITS............................. A-1
vi
<PAGE> 88
CP Limited Partnership
Reconciliation and tie between Trust Indenture Act of 1939 (the "TIA") and
Indenture, dated as of December 19, 1997
Trust Indenture Act Section Indenture Section
Sec. 310(a)(1)....................................... 607
(a)(2).......................................... 607
(b)............................................. 607, 608
Sec. 312(a).......................................... 704
Sec.312(c)........................................... 701
Sec. 313(a).......................................... 702
(c)............................................. 702
Sec. 314(a).......................................... 1006
(a)(4).......................................... 1007
(c)(1).......................................... 102
(c)(2).......................................... 102
(e)............................................. 102
Sec. 315(b).......................................... 601
Sec. 316(a) (last sentence).......................... 101 ("Outstanding")
(a)(1)(A)....................................... 502, 512
(a)(1)(B)....................................... 513
(b)............................................. 508
Sec. 317(a)(1)....................................... 503
(a)(2).......................................... 504
Sec. 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 Section 318(c) of the TIA, which
provides that the provisions of Sections 310 to and including 317 of the TIA are
a part of and govern every qualified indenture, whether or not physically
contained therein.
vii
<PAGE> 1
EXHIBIT 4.5.1
================================================================================
CP LIMITED PARTNERSHIP
AND
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
----------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of December 19, 1997
Supplementing the Trust Indenture
Dated as of December 19, 1997
----------------------------------
$100,000,000
MandatOry Par Put Remarketed SecuritiesSM ("MOPPRSSM")
due December 10, 2014
================================================================================
"MandatOry Par Put Remarketed SecuritiesSM" and
"MOPPRSSM" are service marks owned by Merrill
Lynch & Co., Inc.
<PAGE> 2
SUPPLEMENTAL INDENTURE, dated as of the 19th day of December, 1997,
between CP LIMITED PARTNERSHIP, a limited partnership organized and existing
under the laws of the State of Maryland (the "Operating Partnership"), and The
First National Bank of Chicago, having its principal corporate trust office in
The City of Chicago, Illinois, as trustee (the "Trustee");
WHEREAS, the Operating Partnership has heretofore executed and
delivered to the Trustee an Indenture dated as of December 19, 1997 (the
"Original Indenture" and, together with this First Supplemental Indenture, the
"Indenture") providing for the issuance by the Operating Partnership from time
to time of its unsecured debt securities to be issued in one or more series (in
the Original Indenture and herein called the "Securities"); and
WHEREAS, the Operating Partnership, in the exercise of the power and
authority conferred upon and reserved to it under the provisions of the Original
Indenture, has duly determined to make, execute and deliver to the Trustee this
First Supplemental Indenture to the Original Indenture in order to establish the
form and terms of, and to provide for the creation and issue of a series of
Securities designated as the "6.92% MandatOry Par Put Remarketed SecuritiesSM
("MOPPRSSM") due December 10, 2014" under the Original Indenture in the
aggregate principal amount of $100,000,000; and
WHEREAS, all things necessary to make the Securities, when executed
by the Operating Partnership and authenticated and delivered by the Trustee or
any Authenticating Agent and issued upon the terms and subject to the conditions
hereinafter and in the Indenture set forth against payment therefor, the valid,
binding and legal obligations of the Operating Partnership and to make this
First Supplemental Indenture a valid, binding and legal agreement of the
Operating Partnership, have been done;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH that,
in order to establish the terms of a series of Securities designated as the
"6.92% MandatOry Par Put Remarketed Securities due December 10, 2014", and for
and in consideration of the premises and of the covenants contained in the
Original Indenture and in this First Supplemental Indenture and for other good
and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed as follows:
- ----------
"MandatOry Par Put Remarketed SecuritiesSM" and "MOPPRSSM" are service marks
owned by Merrill Lynch & Co., Inc.
1
<PAGE> 3
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. Each capitalized term that is used herein
and is defined in the Original Indenture shall have the meaning specified in the
Original Indenture unless such term is otherwise defined herein.
"Acquired Debt" shall mean Debt 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 Debt incurred
in connection with, or in contemplation of, such Person becoming a Subsidiary or
such acquisition. Acquired Debt shall be deemed to be incurred on the date of
the related acquisition of assets from any Person or the date the acquired
Person becomes a Subsidiary.
"Adjusted Total Assets" as of any date shall mean the sum of (i)
$281,626,340, (ii) $52,831,381, (iii) the purchase price or cost of any real
estate assets or mortgages receivable acquired (including the value of any OP
Units issued in connection therewith) or real estate assets developed or capital
improvements incurred after the IPO and the amount of any securities offering
proceeds and other proceeds of Debt received after the IPO and (iv) all other
assets of the Operating Partnership acquired after the IPO (but excluding
intangibles and accounts receivable) after eliminating inter-company accounts
and transactions.
"Annual Service Charge" for any period shall mean the maximum amount
which is payable during such period for interest on, and the amortization during
such period of any original issue discount of, Debt of the Operating Partnership
and its Subsidiaries and the amount of dividends which are payable during such
period in respect of any Disqualified Stock.
"Applicable Spread" has the meaning specified in Section 204.
"Base Rate" has the meaning specified in Section 204.
"Beneficial Owner" shall mean the person who acquires an interest in
the MOPPRS which is reflected on the records of the DTC through its
participants.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in the City of New York are authorized or
obligated by law, executive order or governmental decree to be closed.
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"Capital Stock" shall mean, 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.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Common Stock" shall mean the common stock of the Company.
"Company" shall mean Chateau Communities, Inc.
"Comparable Treasury Issues" has the meaning specified in Section
204.
"Consolidated Income Available for Debt Service" for any period
shall mean Earnings from Operations of the Operating Partnership and its
Subsidiaries plus amounts which have been deducted, and minus amounts which have
been added, for the following (without duplication): (i) interest on Debt of the
Operating Partnership and its Subsidiaries; (ii) provision for taxes of the
Operating Partnership and its Subsidiaries based on income; (iii) amortization
of debt discount; (iv) provisions for gains and losses on real estate assets and
real estate 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.
"Debt" of the Operating Partnership or any Subsidiary shall mean any
indebtedness of the Operating Partnership or any Subsidiary, whether or not
contingent, in respect of (i) money borrowed or evidenced by bonds, notes,
debentures or similar instruments, (ii) indebtedness for borrowed money secured
by any Encumbrance existing on property owned by the Operating Partnership or
any Subsidiary, (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
Operating Partnership or any Subsidiary with respect to redemption, repayment or
other repurchase of any Disqualified Stock or (v) any lease of property by the
Operating Partnership or any Subsidiary as lessee which is reflected on the
Operating Partnership's consolidated balance sheet as a capitalized lease in
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accordance with GAAP, to the extent, in the case of items of indebtedness under
(i) through (iii) above, that any such items (other than letters of credit)
would appear as a liability on the Operating Partnership's consolidated balance
sheet in accordance with GAAP, and also includes, to the extent not otherwise
included, any obligation by the Operating Partnership or any Subsidiary to be
liable for, or to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business), Debt of another
Person (other than the Operating Partnership or any Subsidiary). Debt shall be
deemed to be incurred by the Operating Partnership or any Subsidiary whenever
the Operating Partnership or such Subsidiary shall create, assume, guarantee or
otherwise become liable in respect thereof.
"Determination Date" shall be the third Business Day immediately
preceding the Remarketing Date.
"Disqualified Stock" shall mean, 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 Debt
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 Common Stock), in each case on or prior to the Stated
Maturity Date of the MOPPRS.
"Dollar Price" has the meaning specified in Section 204.
"DTC" has the meaning specified in Section 204.
"DTC Participant" shall mean any person that has an account with DTC
through which Beneficial Owners acquire an interest in the MOPPRS.
"Earnings from Operations" for any period shall mean 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
Operating Partnership and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Encumbrance" shall mean any mortgage, lien, charge, pledge or
security interest of any kind.
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"Event of Default" has the meaning specified in Section 101 of the
Original Indenture.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"GAAP" has the meaning specified in Section 101 of the Original
Indenture.
"IPO" shall mean the 1993 initial public offering of the Company.
"Interest Rate to Maturity" shall mean the rate of interest that the
MOPPRS will bear as determined by the Remarketing Dealer in accordance with the
procedures set forth herein.
"Make-Whole Amount" has the meaning specified in Section 206.
"MOPPRS" have the meaning specified in Section 201.
"Notification Date" has the meaning specified in Section 204.
"Operating Partnership" shall mean CP Limited Partnership, a
Maryland limited partnership.
"Optional Redemption Price" has the meaning specified in Section
206.
"OP Units" shall mean units of limited partnership interest in the
Operating Partnership.
"Person" has the meaning specified in Section 101 of the Original
Indenture.
"Redemption Price" has the meaning specified in Section 206.
"Reference Corporate Dealer" has the meaning specified in Section
204.
"Reference Treasury Dealer" has the meaning specified in Section
204.
"Reinvestment Rate" has the meaning specified in Section 206.
"Remaining Scheduled Payments" has the meaning specified in Section
204.
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"Remarketing Agreement" shall mean the agreement dated as of
December 23, 1997 which sets forth the rights and obligations of the Company,
the Operating Partnership and the Remarketing Dealer with respect to the
remarketing of the MOPPRS.
"Remarketing Date" shall mean December 10, 2004.
"Remarketing Dealer" shall mean Merrill Lynch, Pierce, Fenner &
Smith Incorporated.
"Security" has the meaning specified in Section 101 of the Original
Indenture.
"Stated Maturity Date" shall mean December 10, 2014.
"Statistical Release" has the meaning specified in Section 206.
"Subsidiary" shall mean, 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 are owned, directly or
indirectly, by such Person. For the purposes of this definition, "voting equity
securities" shall mean equity securities having voting power for the election of
directors, whether at all times or only so long as no senior class of security
has such voting power by reason of any contingency.
"Total Unencumbered Assets" shall mean the sum of (i) those
Undepreciated Real Estate Assets not subject to an Encumbrance for borrowed
money and (ii) all other assets of the Operating Partnership and its
Subsidiaries not subject to an Encumbrance for borrowed money determined in
accordance with GAAP (but excluding accounts receivable and intangibles).
"Treasury Rate" has the meaning specified in Section 204.
"Trustee" shall mean The First National Bank of Chicago.
"Undepreciated Real Estate Assets" as of any date shall mean the
cost (original cost plus capital improvements) of real estate assets of the
Operating Partnership and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with GAAP. For
purposes of this definition, the original cost of each real asset owned by the
Operating Partnership and its Subsidiaries as of the closing date of the IPO
shall be determined by reference to each such asset's contribution to the net
operating income of the Operating Partnership as of the closing date of the IPO.
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"Unsecured Debt" shall mean Debt which is not secured by any
Encumbrance upon any of the properties of the Operating Partnership or any
Subsidiary.
Section 102. Section References. Each reference to a particular
section set forth in this First Supplemental Indenture shall, unless the context
otherwise requires, refer to this First Supplemental Indenture.
ARTICLE TWO
TITLE AND TERMS OF THE MOPPRS
Section 201. Title of the MOPPRS. Pursuant to Section 901 of the
Original Indenture, this First Supplemental Indenture hereby establishes a
series of Securities designated as the "6.92% MandatOry Par Put Remarketed
Securities due December 10, 2014" of the Operating Partnership (the "MOPPRS").
For purposes of the Original Indenture, the MOPPRS shall constitute a single
series of Securities.
Section 202. Amount and Denominations; DTC. The aggregate principal
amount of MOPPRS that may be issued under this First Supplemental Indenture is
limited to $100,000,000.
The MOPPRS shall be issuable only in fully registered form and shall
initially be registered in the name of The Depositary Trust Company ("DTC"), or
its nominee who is hereby designated as "Holder" under the Original Indenture.
The authorized denominations of MOPPRS shall be $1,000 and integral multiples
thereof.
Section 203. Interest To Remarketing Date. (a) The MOPPRS shall bear
interest at the annual interest rate of 6.92% per annum to the Remarketing Date.
(b) On and after the Remarketing Date or the Maturity Date or earlier redemption
or repurchase, if any, provided that the MOPPRS shall have been remarketed as
provided herein, the MOPPRS shall bear the Interest Rate to Maturity, and for
such period, for all purposes herein and in the Original Indenture, interest
shall be calculated at such Interest Rate to Maturity.
Section 204. Remarketing and Determination of Interest Rate to
Maturity. The Remarketing Dealer's obligations set forth herein shall be
performed pursuant to the Remarketing Agreement.
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(a) Mandatory Tender. Provided that the Remarketing Dealer gives notice to
the Operating Partnership and the Trustee on a Business Day not more than
fifteen nor less than five Business Days prior to the Remarketing Date of its
intention to purchase the MOPPRS for remarketing (the "Notification Date"), each
MOPPRS shall be automatically tendered, or deemed tendered, to the Remarketing
Dealer for purchase on the Remarketing Date, except in the circumstances set
forth in Sections 205 and 206. The purchase price for the tendered MOPPRS shall
equal 100% of the principal amount thereof plus accrued and unpaid interest.
When the MOPPRS are tendered for remarketing, the Remarketing Dealer may
remarket the MOPPRS for its own account at varying prices to be determined by
the Remarketing Dealer at the time of each sale. From and after the Remarketing
Date, the MOPPRS shall bear interest at the Interest Rate to Maturity. If the
Remarketing Dealer elects to remarket the MOPPRS, the obligation of the
Remarketing Dealer to purchase the MOPPRS on the Remarketing Date is subject to
the conditions specified in Section 8 of the Remarketing Agreement. If for any
reason the Remarketing Dealer does not purchase all tendered MOPPRS on the
Remarketing Date, the Operating Partnership shall be required to repurchase the
MOPPRS from the Beneficial Owners thereof at a price equal to the principal
amount thereof plus all accrued and unpaid interest, if any, on the MOPPRS to
the Remarketing Date.
(b) Remarketing. The Interest Rate to Maturity shall be established
by the Remarketing Dealer in accordance with the following procedures:
(i) Interest Rate to Maturity. Subject to the Remarketing Dealer's
election to remarket the MOPPRS as provided in subsection (a) above, the
Interest Rate to Maturity shall be determined by the Remarketing Dealer by 3:30
p.m., New York City time, on the third Business Day preceding the Remarketing
Date (the "Determination Date") to the nearest one hundred-thousandth (0.00001)
of one percent per annum, and shall be equal to the sum of 5.753% (the "Base
Rate") plus the Applicable Spread (as defined below), which will be based on the
Dollar Price (as defined below) of the MOPPRS.
The "Applicable Spread" will be the lowest bid indication, expressed
as a spread (in the form of a percentage or in basis points) above the Base
Rate, obtained by the Remarketing Dealer on the Determination Date from the bids
quoted by five Reference Corporate Dealers (as defined below) for the full
aggregate principal amount of the MOPPRS at the Dollar Price, but assuming (i)
an issue date equal to the Remarketing Date, with settlement on such date
without accrued interest, (ii) a maturity date equal to the Stated Maturity Date
of the MOPPRS, and (iii) a stated annual interest rate equal to the Base Rate
plus the spread
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bid by the applicable Reference Corporate Dealer. If fewer than five Reference
Corporate Dealers bid as set forth in this subsection (b)(i) of Section 204,
then the Applicable Spread shall be the lowest of such bid indications obtained
as set forth in this subsection (b)(i) of Section 204. The Interest Rate to
Maturity announced by the Remarketing Dealer, absent manifest error, shall be
binding and conclusive upon the Beneficial Owners and Holders of the MOPPRS, the
Operating Partnership, the Company and the Trustee.
"Dollar Price" shall mean, with respect to the MOPPRS, the present
value, as of the Remarketing Date, of the Remaining Scheduled Payments (as
defined below) discounted to the Remarketing Date, on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months), at the Treasury
Rate (as defined below).
"Reference Corporate Dealers" mean leading dealers of publicly
traded debt securities of the Operating Partnership in The City of New York
(which may include the Remarketing Dealer or one of its affiliates) selected by
the Remarketing Dealer.
"Treasury Rate" shall mean, with respect to the Remarketing Date,
the rate per annum equal to the semi-annual equivalent yield to maturity or
interpolated (on a day count basis) yield to maturity of the Comparable Treasury
Issues (as defined below), assuming a price for the Comparable Treasury Issues
(expressed as a percentage of its principal amount), equal to the Comparable
Treasury Price (as defined below) for such Remarketing Date.
"Comparable Treasury Issues" shall mean the United States Treasury
security or securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
MOPPRS being purchased.
"Comparable Treasury Price" shall mean, with respect to the
Remarketing Date, (a) the offer prices for the Comparable Treasury Issues
(expressed in each case as a percentage of its principal amount) on the
Determination Date, as set forth on "Telerate Page 500" (or such other page as
may replace Telerate Page 500) 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 the Reference Treasury Dealer Quotations for such Remarketing
Date, after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, 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" shall mean 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)
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or such other service displaying the offer prices specified in (a) above as may
replace Dow Jones Markets Limited.
"Reference Treasury Dealer Quotations" shall mean, with respect to each
Reference Treasury Dealer and the Remarketing Date, the offer prices for the
Comparable Treasury Issues (expressed in each case as a percentage of its
principal amount) quoted in writing to the Remarketing Dealer by such Reference
Treasury Dealer by 3:30 p.m. New York City time, on the Determination Date.
"Reference Treasury Dealer" shall mean each of Credit Suisse First
Boston Corporation, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated and Salomon Brothers Inc and
their respective successors; provided, however, that if any of the foregoing or
their affiliates shall cease to be a primary U.S. Government securities dealer
in The City of New York (a "Primary Treasury Dealer"), the Remarketing Dealer
shall substitute therefor another Primary Treasury Dealer.
"Remaining Scheduled Payments" shall mean, with respect to the
MOPPRS, the remaining scheduled payments of the principal thereof and interest
thereon, calculated at the Base Rate only, that would be due after the
Remarketing Date to and including the Stated Maturity Date; provided, however,
that if the Remarketing Date is not an Interest Payment Date with respect to the
MOPPRS, the amount of the next succeeding scheduled interest payment thereon,
calculated at the Base Rate only, will be reduced by the amount of interest
accrued thereon, calculated at the Base Rate only, to the Remarketing Date.
(ii) Notification of Results; Settlement. Provided the Remarketing
Dealer has previously notified the Operating Partnership and the Trustee on the
Notification Date of its intention to purchase all tendered MOPPRS on the
Remarketing Date, the Remarketing Dealer shall notify the Operating Partnership,
the Trustee and DTC by telephone, confirmed in writing, by 4:00 p.m., New York
City time, on the Determination Date, of the Interest Rate to Maturity.
All of the tendered MOPPRS shall be automatically delivered to the
account of the Trustee, by book-entry through DTC pending payment of the
purchase price therefor, on the Remarketing Date.
In the event that the MOPPRS are remarketed as provided for in the
Remarketing Agreement, the Remarketing Dealer shall make or cause the Trustee to
make payment to the DTC Participant of each tendering Beneficial Owner of
MOPPRS, by book-entry through DTC by the close of business on the Remarketing
Date against delivery
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through DTC of such Beneficial Owner's tendered MOPPRS, of 100% of the principal
amount for tendered MOPPRS that have been purchased for remarketing by the
Remarketing Dealer. If the Remarketing Dealer does not purchase all of the
MOPPRS on the Remarketing Date, it shall be the obligation of the Operating
Partnership to make or cause to be made such payment for the MOPPRS, as provided
in Section 205 hereof. In any case, the Operating Partnership shall make or
cause the Trustee to make payment of interest to each Beneficial Owner of MOPPRS
due on the Remarketing Date by book-entry through DTC by the close of business
on the Remarketing Date.
The transactions set forth in this Section 204 shall be executed on
the Remarketing Date through DTC in accordance with the procedures of DTC, and
the accounts of the respective DTC Participants will be debited and credited and
the MOPPRS delivered by book-entry as necessary to effect the purchases and
sales thereof.
Transactions involving the sale and purchase of MOPPRS remarketed by
the Remarketing Dealer on and after the Remarketing Date shall settle in
immediately available funds through DTC's Same-Day Funds Settlement System.
The settlement procedures set forth above, including provisions for
payment by purchasers of MOPPRS in the remarketing or for payment to selling
Beneficial Owners of tendered MOPPRS, may be modified to the extent required by
DTC. In addition, the Remarketing Dealer may, without the consent of the Holders
of the MOPPRS, modify the settlement procedures set forth above in order to
facilitate the settlement process.
As long as DTC's nominee holds the certificates representing any
MOPPRS in the book-entry system of DTC, no certificates for such MOPPRS will be
delivered by any selling Beneficial Owner to reflect any transfer of such MOPPRS
effected in the remarketing.
Section 205. Repurchase of the MOPPRS. In the event that (i) the
Remarketing Dealer for any reason does not notify the Operating Partnership of
the Interest Rate to Maturity by 4:00 p.m., New York City time, on the
Determination Date, or (ii) prior to the Remarketing Date, the Remarketing
Dealer has resigned and no successor has been appointed on or before the
Determination Date, or (iii) since the Notification Date, a failure of any of
the conditions specified in Section 8 of the Remarketing Agreement has occurred,
or (iv) the Remarketing Dealer elects not to remarket the MOPPRS, or (v) the
Remarketing Dealer for any reason does not purchase all tendered MOPPRS on the
Remarketing Date, the Operating Partnership shall repurchase the MOPPRS as a
whole on the Remarketing Date at a price equal to 100% of the principal amount
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of the MOPPRS plus all accrued and unpaid interest, if any, on the MOPPRS to the
Remarketing Date. In any such case, payment shall be made by the Operating
Partnership to the DTC Participant of each tendering Beneficial Owner of MOPPRS,
by book-entry through DTC by the close of business on the Remarketing Date
against delivery through DTC of such Beneficial Owner's tendered MOPPRS.
Section 206. Redemption of the MOPPRS. (a) Redemption from
Remarketing Dealer. If the Remarketing Dealer elects to remarket the MOPPRS on
the Remarketing Date, the MOPPRS shall be subject to mandatory tender to the
Remarketing Dealer for remarketing on such date, in each case subject to the
conditions set forth in Sections 204 and 205 hereof and to the Operating
Partnership's right to redeem the MOPPRS from the Remarketing Dealer as set
forth in the next sentence. The Operating Partnership shall notify the
Remarketing Dealer and the Trustee, not later than the Business Day immediately
preceding the Determination Date, if the Operating Partnership irrevocably
elects to exercise its right to redeem the MOPPRS, in whole but not in part,
from the Remarketing Dealer on the Remarketing Date at the Optional Redemption
Price.
The "Optional Redemption Price" shall be the greater of (i) 100% of the
principal amount of the MOPPRS and (ii) the sum of the present values of the
Remaining Scheduled Payments thereon, as determined by the Remarketing Dealer,
discounted to the Remarketing Date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate, plus in either
case accrued and unpaid interest from the Remarketing Date on the principal
amount being redeemed to the date of redemption.
(b) Redemption from Beneficial Owners. After the Remarketing Date, the
MOPPRS shall be subject to redemption at the option of the Operating
Partnership, in whole or in part, at any time, at a redemption price determined
by the Operating Partnership equal to the sum of (i) the principal amount of the
MOPPRS being redeemed, plus accrued and unpaid interest thereon to the
redemption date, and (ii) the Make-Whole Amount (as defined below), if any, with
respect to such MOPPRS (the "Redemption Price"). For purposes of this section,
interest shall be calculated at the Interest Rate to Maturity.
If notice has been given as provided in the Original Indenture and funds
for the redemption of any MOPPRS called for redemption shall have been made
available on the redemption date referred to in such notice, such MOPPRS shall
cease to bear interest on the date fixed for such redemption specified in such
notice and the only right of the Holders from and after the redemption date
shall be to receive payment of the Redemption Price upon surrender of such
MOPPRS in accordance with such notice.
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Notice of any optional redemption of any MOPPRS shall be given to Holders
at their addresses, as shown in the security register for the MOPPRS, not less
than 30 nor more than 60 days prior to the date fixed for redemption. The notice
of redemption shall specify, among other items, the Redemption Price and the
principal amount of the MOPPRS held by such Holder to be redeemed. If less than
all of the MOPPRS are to be redeemed, the particular MOPPRS to be redeemed shall
be selected by such method as the Trustee deems fair and appropriate.
As used herein:
"Make-Whole Amount" shall mean, in connection with any optional
redemption of any MOPPRS, 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 any interest (exclusive of interest accrued to
the date of redemption) that would have been payable in respect of each
such dollar if such redemption had not been made, determined by
discounting, on a semi-annual basis, such principal and interest at the
applicable Reinvestment Rate (determined on the third Business Day
preceding the date such notice of redemption is given) from the respective
dates on which such principal and interest would have been payable if such
redemption had not been made, over (ii) the aggregate principal amount of
the MOPPRS being redeemed.
"Reinvestment Rate" shall mean 0.25% plus the yield on treasury
securities at a constant maturity for the most recent week under the
heading "Week Ending" published in the most recent Statistical Release
under the caption "Treasury Constant Maturities" for the maturity (rounded
to the nearest month) corresponding to the remaining life to maturity, as
of the payment date of the principal being redeemed. If no maturity
exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity 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 such relevant periods to the nearest month. For
the purpose of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" shall mean 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
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statistical release is not published at the time of any determination
under the Indenture, then such other reasonably comparable index which
shall be designated by the Operating Partnership.
Section 207. Form and Other Terms of the MOPPRS.
Attached hereto as Exhibit A is a form of the MOPPRS, which form is
hereby established as the form in which the MOPPRS shall be executed,
authenticated and delivered in accordance with the provisions of, and shall in
all respects be subject to, the terms, conditions and covenants of the Indenture
and this First Supplemental Indenture. All of the terms and provisions set forth
in Exhibit A are incorporated herein by reference.
ARTICLE THREE
ADDITIONAL COVENANTS
With respect to the MOPPRS, the following will be additional
Covenants to follow Section 1009 of the Indenture:
SECTION 1010. Limitations on Amount of Debt that the Operating
Partnership May Incur in Relation to Adjusted Total Assets. The Operating
Partnership shall not, and shall not permit any Subsidiary to, incur any
Debt if, immediately after giving effect to the incurrence of such
additional Debt and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Debt of the Operating Partnership and
its Subsidiaries on a consolidated basis determined in accordance with
GAAP is greater than 60% of the sum of (without duplication) (i) the
Adjusted Total Assets of the Operating Partnership and its Subsidiaries as
of the end of the calendar quarter covered in the Operating Partnership'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 or made under the Exchange Act, with the Trustee) prior to the
incurrence of such additional Debt plus (ii) the increase, if any, in
Adjusted Total Assets from the end of the calendar quarter, including
those proceeds obtained in connection with the incurrence of such
additional Debt minus (iii) the decrease, if any, in the Adjusted Total
Assets from the end of such quarter.
SECTION 1011. Limitations on Amount of Debt Secured by any
Encumbrance that the Operating Partnership May Incur. In
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addition to the foregoing limitation on the incurrence of Debt, the
Operating Partnership shall not, and shall not permit any Subsidiary to,
incur any Debt secured by any Encumbrance upon any of the property of the
Operating Partnership or any Subsidiary if, immediately after giving
effect to the incurrence of such additional Debt and the application of
the proceeds thereof, the aggregate principal amount of all outstanding
Debt of the Operating Partnership and its Subsidiaries on a consolidated
basis which is secured by any Encumbrance on property of the Operating
Partnership or any Subsidiary is greater than 40% of the sum of (without
duplication) (i) the Adjusted Total Assets of the Operating Partnership
and its Subsidiaries as of the end of the calendar quarter covered in the
Operating Partnership's Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, as the case may be, most recently filed with the Commission
(or, if such filing is not permitted under the Exchange Act, with the
Trustee) prior to the incurrence of such additional Debt plus (ii) the
increase, if any, in Adjusted Total Assets from the end of the calendar
quarter, including those proceeds obtained in connection with the
incurrence of such additional Debt minus (iii) the decrease, if any, in
the Adjusted Total Assets from the end of such quarter.
SECTION 1012. Ownership of Total Unencumbered Assets. The Operating
Partnership and its Subsidiaries may not at any time own Total
Unencumbered Assets equal to less than 150% of the aggregate outstanding
principal amount of the Unsecured Debt of the Operating Partnership and
its Subsidiaries on a consolidated basis.
SECTION 1013. Limitations on Debt with Respect to the Ratio of
Consolidated Income Available for Debt Service to the Annual Service
Charge. The Operating Partnership shall not, and shall not permit any
Subsidiary to, incur any Debt if the ratio of Consolidated Income
Available for Debt Service to the Annual Service Charge for the four
consecutive fiscal quarters most recently ended prior to the date on which
such additional Debt is to be incurred shall have been less than 1.5:1 on
a pro forma basis after giving effect thereto and to the application of
the proceeds therefrom, and calculated on the assumption that (i) such
Debt and any other Debt incurred by the Operating Partnership and its
Subsidiaries since the first day of such four-quarter period and the
application of the proceeds therefrom, including to refinance other Debt,
had occurred at the beginning of such period; (ii) the repayment or
retirement of any other Debt by the Operating Partnership 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
15
<PAGE> 17
Debt under any revolving credit facility shall be computed based upon the
average daily balance of such Debt during such period); (iii) in the case
of Acquired Debt or Debt incurred in connection with any acquisition since
the first day of such four-quarter period, the related acquisition had
occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition being included in such pro
forma calculation; and (iv) in the case of any acquisition or disposition
by the Operating Partnership or its Subsidiaries of any asset or group of
assets since the first day of such four-quarter period, whether by merger,
stock purchase or sale, or asset purchase or sale, such acquisition or
disposition or any related repayment of Debt had occurred as of the first
day of such period with the appropriate adjustments with respect to such
acquisition or disposition being included in such pro forma calculation.
SECTION 1014. Limitations on Defeasance; Maintenance of MOPPRS in
Book-Entry Form. (a) Neither the Company, the Operating Partnership nor
any of their subsidiaries or affiliates shall defease, purchase or
otherwise acquire, or enter into any agreement to defease, purchase or
otherwise acquire, any of the MOPPRS prior to the remarketing thereof by
the Remarketing Dealer.
(b) Notwithstanding any provision to the contrary set forth in the
Original Indenture, the Operating Partnership shall (i) use its best
efforts to maintain the MOPPRS in book-entry form with DTC or any
successor thereto and to appoint a successor depositary to the extent
necessary to maintain the MOPPRS in book-entry form, and (ii) waive any
discretionary right it otherwise has under the Original Indenture to cause
the MOPPRS to be issued in certificated form.
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
The Trustee makes no undertaking or representations in respect of,
and shall not be responsible in any manner whatsoever for and in respect of, the
validity or sufficiency of this First Supplemental Indenture or the proper
authorization or the due execution hereof by the Operating Partnership or for or
in respect of the recitals and statements contained herein, all of which
recitals and statements are made solely by the Operating Partnership.
16
<PAGE> 18
Except as expressly amended hereby, the Indenture shall continue in
full force and effect in accordance with the provisions thereof and the
Indenture and the Indenture is in all respects hereby ratified and confirmed.
This First Supplemental Indenture and all its provisions shall be deemed a part
of the Indenture in the manner and to the extent herein and therein provided.
This First Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York.
This First 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.
17
<PAGE> 19
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
CP LIMITED PARTNERSHIP
By: Chateau Communities, Inc., one of
its general partners
By:
-----------------------------------
Name: Gary P. McDaniel
Title: Chief Executive Officer
By: ROC Communities, Inc., its other
general partner
By:
-----------------------------------
Name: Gary P. McDaniel
Title: Chief Executive Officer
ATTEST:
By:
---------------------------
(Corporate Seal)
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
-----------------------------------
Name:
Title:
ATTEST:
By:
---------------------------
(Corporate Seal)
<PAGE> 20
STATE OF __________)
) :
COUNTY OF _________)
On the _____ day of ________, 1997, before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he is _________________ of CP LIMITED PARTNERSHIP, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and he signed his name thereto by like authority.
-------------------------------
Notary Public, State of _______
[Notarial Seal]
STATE OF NEW YORK )
) :
COUNTY OF _______ )
On the ___ day of _______, 1997, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose and
say that he is _________________ of
, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and he signed his name
thereto by like authority.
--------------------------------
Notary Public, State of New York
[Notarial Seal]
<PAGE> 21
Exhibit A
FORM OF MOPPRS
<PAGE> 1
EXHIBIT 4.6
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW
YORK) TO THE ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
REGISTERED REGISTERED PRINCIPAL
No. 1 AMOUNT: $100,000,000
CUSIP No.: 12615R AB8
CP LIMITED PARTNERSHIP
6.92% MandatOry Par Put Remarketed SecuritiesSM ("MOPPRSSM")
due December 10, 2014
ORIGINAL ISSUE DATE: INTEREST RATE STATED MATURITY DATE:
December 23, 1997 TO REMARKETING December 10, 2014
DATE: 6.92%
REMARKETING DATE: INTEREST RATE
December 10, 2004 TO MATURITY: To be determined as provided herein
and set forth in the records of the
Trustee
AUTHORIZED DENOMINATION: INTEREST PAYMENT DATE(S):
$1,000 and integral multiples thereof June 10 and December 10
- ----------
"MandatOry Par Put Remarketed SecuritiesSM" and "MOPPRSSM" are service marks
owned by Merrill Lynch & Co., Inc.
<PAGE> 2
CP LIMITED PARTNERSHIP, a Maryland Limited Partnership (the "Issuer"),
which term includes any successor under the Indenture hereinafter referred to,
for value received, hereby promises to pay to Cede & Co., a nominee of The
Depository Trust Company ("DTC"), or its registered assigns, the principal
amount of One Hundred Million Dollars ($100,000,000), on thye Stated Maturity
Date specified above (or any earlier redemption date or repurchase date) (each
such Stated Maturity Date, redemption date or repurchase date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon, at the Interest Rate per annum specified
above to December 10, 2004 (the "Remarketing Date"), and thereafter, subject to
the terms and conditions set forth herein, at the Interest Rate determined by
the Remarketing Dealer (as defined below) in accordance with the procedures set
forth below (the "Interest Rate to Maturity"), until the principal hereof is
paid or duly made available for payment. The Issuer will pay interest in arrears
on each Interest Payment Date, if any, specified above (each, an "Interest
Payment Date"), commencing with the first Interest Payment Date next succeeding
the Original Issue Date specified above, and on the Maturity Date. Interest on
this MOPPRS will be computed on the basis of a 360-day year of twelve 30-day
months.
If, pursuant to the Remarketing Agreement, dated as of the date hereof
(the"Remarketing Agreement), between Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Remarketing Dealer (the "Remarketing Dealer"), the Issuer and
Chateau Communities, Inc. (the "Company"), the Remarketing Dealer elects to
remarket the MOPPRS, then, except as otherwise set forth herein, (i) this MOPPRS
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
herein, and (ii) on and after the Remarketing Date, this MOPPRS shall bear
interest at the Interest Rate to Maturity determined by the Remarketing Dealer
in accordance with the procedures set forth in Section 3 herein.
Interest on this MOPPRS will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, subject
to certain exceptions described herein, be paid to the person in whose name this
MOPPRS (or one or more predecessor MOPPRS) is registered at the close of
business on the fifteenth calendar day (whether or not a Business Day, as
defined below) immediately preceding such Interest Payment Date (the "Record
Date"); provided, however, that interest payable on the Maturity Date will be
payable to the person to whom the principal hereof and premium, if any, hereon
shall be payable. Any such interest not so punctually paid or duly provided for
("Defaulted Interest") will forthwith cease to be payable to the holder on any
Record Date, and shall be paid to the person in whose name this MOPPRS is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee hereinafter referred to, notice whereof shall be given to the holder of
this MOPPRS by the Trustee nor more than 15 days 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
2
<PAGE> 3
requirements of any securities exchange on which this MOPPRS may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
MOPPRS due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this MOPPRS (and, with respect to any applicable
repayment of this MOPPRS, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in the Borough of Manhattan, The City of New York, currently located c/o
First Chicago Trust Company of New York, 14 Wall Street, 8th Floor, New York, NY
10003, or at such other paying agency in the Borough of Manhattan, The City of
New York, as the Issuer may determine. Payment of interest due on any Interest
Payment Date other than the Maturity Date will be made by check mailed to the
address of the person entitled thereto as such address shall appear in the
Security Register maintained at the aforementioned office of the Trustee.
If any Interest Payment Date or the Maturity Date falls on a day that is
not a Business Day, the required payment of principal, premium, if any, and/or
interest shall be made on the next succeeding Business Day with the same force
and effect as if made on the date such payment was due, and no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date or the Maturity Date, as the case may be.
As used herein, "Business Day" means any day other than a Saturday, Sunday
or a day on which banking institutions in The City of New York are authorized or
required by law, executive order or governmental decree to be closed
The Issuer is obligated to make payment of principal, premium, if any, and
interest in respect of this MOPPRS in U.S. Dollars.
Reference is hereby made to the further provisions of this MOPPRS set
forth on the reverse hereof.
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this MOPPRS shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
3
<PAGE> 4
IN WITNESS WHEREOF, CP Limited Partnership has caused this MOPPRS to be
duly executed.
CP LIMITED PARTNERSHIP,
as Issuer
By: CHATEAU COMMUNITIES, INC.
one of its General Partners
By:
-----------------------------
Name:
Title:
By: ROC COMMUNITIES, INC.
its other General Partner
By:
-----------------------------
Name:
Title:
Attest:
- -----------------------------
Name:
Title:
[SEAL]
4
<PAGE> 5
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities designated therein referred to in the
within-mentioned Indenture.
Dated: December 23, 1997 THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
----------------------------------
Authorized Signatory
5
<PAGE> 6
CP LIMITED PARTNERSHIP
6.92% MandatOry Par Put Remarketed SecuritiesSM ("MOPPRSSM")
due December 10, 2014
1. Indenture. (a) This MOPPRS is one of a duly authorized series of
Securities of the Issuer issued under an Indenture, dated as of December 19,
1997, as supplemented by the First Supplemental Indenture, dated as of December
19, 1997 (the "Indenture"), between the Issuer and The First National Bank of
Chicago as Trustee (the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Issuer, the Trustee and the
holders of the MOPPRS, and of the terms upon which the MOPPRS are authenticated
and delivered. This Security is designated as "6.92% MandatOry Par Put
Remarketed SecuritiesSM Due December 10, 2014" ("MOPPRS"), which MOPPRS are
limited to $100,000,000 aggregate principal amount, subject to the provisions of
the Indenture. All terms used but not defined in this MOPPRS shall have the
meanings assigned to such terms in the Indenture Except where the context
otherwise requires, all references in this MOPPRS to "herein" or "hereof" or
similar terms shall include the Indenture.
(b) This MOPPRS is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof.
(c) This MOPPRS will not be subject to any sinking fund.
2. Mandatory Tender. Provided that on a Business Day not more than 15 nor
less than five Business Days prior to the Remarketing Date the Remarketing
Dealer notifies the Issuer and the Trustee of its election to purchase the
MOPPRS on the Remarketing Date (the "Notification Date"), the MOPPRS shall be
subject to mandatory tender to the Remarketing Dealer, and the Remarketing
Dealer shall be obligated to purchase the MOPPRS, for remarketing on the
Remarketing Date, subject in each case to the conditions described herein and
set forth in the Remarketing Agreement.
3. Determination of Interest Rate to Maturity. (a) Subject to the
Remarketing Dealer's election to remarket the MOPPRS as provided in Section 2
hereof and the Remarketing Agreement, the Interest Rate to Maturity shall be
determined by the Remarketing Dealer by 3:30 p.m., New York City time, on the
third Business Day preceding the Remarketing Date (the "Determination Date") to
the nearest one hundred-thousandth (0.00001) of one percent per annum, and will
be equal to the sum of 5.753% (the "Base Rate") plus the Applicable Spread,
which will be based on the Dollar Price of the MOPPRS.
The "Applicable Spread" will be the lowest bid indication, expressed as a
spread (in the form of a percentage or in basis points) above the Base Rate,
obtained by the Remarketing Dealer on the Determination Date from the bids
quoted by five Reference Corporate Dealers for the full aggregate principal
amount of the MOPPRS at the Dollar Price, but assuming (i) an issue date equal
to the Remarketing Date, with settlement on such date without accrued interest,
(ii) a
6
<PAGE> 7
maturity date equal to the Stated Maturity Date of the MOPPRS, and (iii) a
stated annual interest rate equal to the Base Rate plus the spread bid by the
applicable Reference Corporate Dealers. If fewer than five Reference Corporate
Dealers bid as described above, then the Applicable Spread shall be the lowest
of such bid indications obtained as described above. The Interest Rate to
Maturity announced by the Remarketing Dealer, absent manifest error, shall be
binding and conclusive upon the Beneficial Owners and Holders of the MOPPRS, the
Issuer, the Company and the Trustee.
"Dollar Price" means, with respect to the MOPPRS, the present value, as of
the Remarketing Date, of the Remaining Scheduled Payments discounted to the
Remarketing Date, on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months), at the Treasury Rate.
"Reference Corporate Dealers" mean leading dealers of publicly traded debt
securities of the Issuer in The City of New York (which may include the
Remarketing Dealer or one of its affiliates) selected by the Remarketing Dealer.
"Treasury Rate" means, with respect to the Remarketing Date, the rate per
annum equal to the semi-annual equivalent yield to maturity or interpolated (on
a day count basis) yield to maturity of the Comparable Treasury Issues, assuming
a price for the Comparable Treasury Issues (expressed as a percentage of its
principal amount), equal to the Comparable Treasury Price for the Remarketing
Date.
"Comparable Treasury Issues" means the United States Treasury security or
securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
MOPPRS being remarketed.
"Comparable Treasury Price" means, with respect to the Remarketing Date,
(a) the offer prices for the Comparable Treasury Issues (expressed in each case
as a percentage of its principal amount) on the Determination Date, as set forth
on "Telerate Page 500" (or such other page as may replace Telerate Page 500), or
(b) if such page (or any successor page) is not displayed or does not contain
such offer prices on the Determination Date, (i) the average of the Reference
Treasury Dealer Quotations for the Remarketing Date, after excluding the highest
and lowest such Reference Treasury Dealer Quotations, 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 and the Remarketing Date, the offer prices for the
Comparable Treasury Issues (expressed in each case as a percentage of its
principal amount) quoted in writing to the Remarketing Dealer by such Reference
Treasury Dealer by 3:30 p.m., on the Determination Date.
7
<PAGE> 8
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Merrill Lynch, Morgan Stanley & Co.
Incorporated and Salomon Brothers Inc and their respective successors; provided,
however, that if any of the foregoing or their affiliates shall cease to be a
primary U.S. Government securities dealer in The City of New York (a "Primary
Treasury Dealer"), the Remarketing Dealer shall substitute therefor another
Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to the MOPPRS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only, that would be due after the Remarketing Date
to and including the Stated Maturity Date; provided, however, that if the
Remarketing Date is not an Interest Payment Date with respect to the MOPPRS, the
amount of the next succeeding scheduled interest payment thereon, calculated at
the Base Rate only, will be reduced by the amount of interest accrued thereon,
calculated at the Base Rate only, to the Remarketing Date.
(b) Notwithstanding any provision herein to the contrary, upon the
occurrence of any Termination Event (as defined below), the Remarketing Dealer,
in its sole discretion at any time between the Determination Date and 3:30 p.m.,
New York City time, on the Business Day immediately preceding the Remarketing
Date, may elect to purchase the MOPPRS for remarketing and determine a new
Interest Rate to Maturity in the manner provided in Section 3(a) hereof, except
that for purposes of determining the new Interest Rate to Maturity pursuant to
this paragraph, the Determination Date referred to therein shall be the date of
such election and redetermination. The Remarketing Dealer shall notify the
Issuer, the Trustee and DTC by telephone, confirmed in writing (which may
include facsimile or other electronic transmission), by 4:00 p.m., New York City
time, on the date of such election, of the new Interest Rate to Maturity
applicable to the MOPPRS. Thereupon, such new Interest Rate to Maturity shall
supersede and replace any Interest Rate to Maturity previously determined by the
Remarketing Dealer and, absent manifest error, shall be binding and conclusive
upon the Beneficial Owners and Holders of the MOPPRS on or after the Remarketing
Date, the Issuer and the Trustee.
"Termination Event" means any event as specified in Section 11(b) of the
Remarketing Agreement.
4. Repurchase. In the event that (i) the Remarketing Dealer for any reason
does not notify the Issuer of the Interest Rate to Maturity by 4:00 p.m., New
York City time, on the Determination Date, or (ii) prior to the Remarketing
Date, the Remarketing Dealer has resigned and no successor has been appointed on
or before the Determination Date, or (iii) at any time after the Remarketing
Dealer elects on the Notification Date to remarket the MOPPRS, any event as set
forth in Section 8 or Section 11 of the Remarketing Agreement shall have
occurred, or (iv) the Remarketing Dealer for any reason does not elect to
purchase the MOPPRS for remarketing on the Remarketing Date, or (v) the
Remarketing Dealer for any reason does not purchase all tendered MOPPRS on the
Remarketing Date, the Issuer shall repurchase the MOPPRS as a whole on the
Remarketing Date at a price equal to 100% of the principal amount of the MOPPRS
plus all accrued and unpaid interest, if any, on the MOPPRS to the Remarketing
Date. In any such
8
<PAGE> 9
case, payment will be made by the Issuer through the Trustee to the DTC
Participant of each tendering Beneficial Owner of MOPPRS, by book-entry through
DTC by the close of business on the Remarketing Date against delivery through
DTC of such Issuer's tendered MOPPRS.
5. Redemption. (a) This MOPPRS will be subject to redemption at the option
of the Issuer from the Remarketing Dealer on the Remarketing Date, in whole but
not in part, at the Optional Redemption Price. The "Optional Redemption Price"
shall be the greater of (i) 100% of the principal amount of the MOPPRS and (ii)
the sum of the present values of the Remaining Scheduled Payments thereon, as
determined by the Remarketing Dealer, discounted to the Remarketing Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate, plus in either case accrued and unpaid interest from the
Remarketing Date on the principal amount being redeemed to the date of
redemption. If the Issuer elects of redeem the MOPPRS, it shall pay the
redemption price therefor in same-day funds by wire transfer to an account
designated by the Remarketing Dealer on the Remarketing Date.
(b) After the Remarketing Date, this MOPPRS shall be subject to redemption
at the option of the Issuer, in whole or in part, at any time, in increments of
U.S. $1,000 (provided that any remaining principal amount hereof shall be at
least U.S. $1,000), at a redemption price determined by the Issuer equal to the
sum of (i) the principal amount of the MOPPRS being redeemed, plus accrued and
unpaid interest thereon to the redemption date, and (ii) the Make-Whole Amount,
if any (the "Redemption Price"). For purposes of redemption after the
Remarketing Date, interest shall be calculated at the Interest Rate to Maturity.
If notice has been given as provided in the Original Indenture and funds
for the redemption of any MOPPRS called for redemption shall have been made
available on the redemption date referred to in such notice, such MOPPRS shall
cease to bear interest on the date fixed for such redemption specified in such
notice and the only right of the Holders from and after the redemption date
shall be to receive payment of the Redemption Price upon surrender of such
MOPPRS in accordance with such notice.
Notice of any optional redemption of any MOPPRS shall be given to Holders
at their addresses, as shown in the security register for the MOPPRS, not less
than 30 nor more than 60 days prior to the date fixed for redemption. The notice
of redemption shall specify, among other items, the Redemption Price and the
principal amount of the MOPPRS held by such Holder to be redeemed. If less than
all of the MOPPRS are to be redeemed, the particular MOPPRS to be redeemed shall
be selected by such method as the Trustee deems fair and appropriate.
"Make-Whole Amount" shall mean, in connection with any optional redemption
of any MOPPRS, 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 any interest (exclusive of interest accrued to the date of redemption)
that would have been payable in respect of each such dollar if such redemption
had not been made, determined by discounting, on a semi-annual basis, such
principal and interest at the applicable Reinvestment Rate (determined on the
third Business Day
9
<PAGE> 10
preceding the date such notice of redemption is given) from the respective dates
on which such principal and interest would have been payable if such redemption
had not been made, over (ii) the aggregate principal amount of the MOPPRS being
redeemed.
"Reinvestment Rate" shall mean 0.25% plus the yield on treasury securities
at a constant maturity for the most recent week under the heading "Week Ending"
published in the most recent Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date of the
principal being redeemed. If no maturity exactly corresponds to such maturity,
yields for the two published maturities most closely corresponding to such
maturity 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 such relevant periods to the nearest
month. For the purpose of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Statistical Release" shall mean the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be designated
by the Issuer.
s
6. Effect of Events of Default. If an Event of Default, as defined in the
Indenture, shall occur and be continuing, the principal of the MOPPRS may be
declared due and payable in the manner and with the effect provided in the
Indenture.
7. Defeasance. The Indenture relating to this MOPPRS contains provisions
for defeasance of (i) in the case of this clause (i), after the Remarketing
Date, the entire indebtedness of the MOPPRS or (ii) certain covenants and Events
of Default with respect to the MOPPRS, in each case upon compliance with certain
conditions set forth therein, which provisions apply to the MOPPRS. Subject to
the forgoing prior to the Remarketing Date, neither the Company, the Issuer nor
any of their subsidiaries or affiliates shall defease, purchase or otherwise
acquire, or enter into any agreement to defease, purchase or otherwise acquire,
any of the MOPPRS prior to the remarketing thereof by the Remarketing Dealer.
8. Amendment and Modification. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Issuer and the rights of the holders of the
MOPPRS at any time by the Issuer and the Trustee with the consent of the holders
of not less than a majority of the aggregate principal amount of all MOPPRS at
the time outstanding and affected thereby. The Indenture also contains
provisions permitting the holders of not less than a majority of the aggregate
principal amount of the outstanding securities of any series issued by the
Issuer, on behalf of the holders of all such securities, to waive compliance by
the Issuer with certain provisions of the Indenture.
10
<PAGE> 11
Furthermore, provisions in the Indenture permit the holders of not less than a
majority of the aggregate principal amount of the outstanding securities of any
series, in certain instances, to waive, on behalf of all of the holders of
securities of such series, certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this MOPPRS shall be
conclusive and binding upon such holder and upon all future holders of this
MOPPRS and other MOPPRS issued upon the registration or transfer hereof or in
exchange heretofore or in lieu hereof, whether or not notation or such consent
or waiver is made upon this MOPPRS.
9. Obligation to Pay Principal, Premium, if any, and Interest. No
reference herein to the Indenture and no provision of this MOPPRS or of the
Indenture shall alter or impair the obligation of the Issuer, which is absolute
and unconditional, to pay principal, premium, if any, and interest in respect of
this MOPPRS at the times, places and rate or formula, and in the coin or
currency, herein prescribed.
10. Transfer and Exchange. As provided in the Indenture and subject to
certain limitations therein and herein set forth, the transfer of this MOPPRS is
registrable in the Security Register of the Issuer upon surrender of this MOPPRS
for registration of transfer at the office or agency of the Issuer in any place
where the principal hereof and any premium or interest hereon are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed by, the
holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new MOPPRS, 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 MOPPRS is exchangeable for a like aggregate principal
amount of MOPPRS of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Issuer 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 MOPPRS for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this MOPPRS is registered as the owner thereof for all
purposes, whether or not this MOPPRS be overdue, and neither the Issuer, the
Trustee nor any such agent shall be affected by notice to the contrary.
11. No Liability of Certain Persons. Neither the Company nor any other
partner of the Issuer shall have any obligation or liability for payment of the
MOPPRS, and holders of the MOPPRS will have no claims or other recourse against
the Company or any other partner of the Issuer, or against any assets of the
Company or any other partner of the Issuer, in respect of the MOPPRS; and the
holders of the MOPPRS shall not have any right to enforce any obligation of
11
<PAGE> 12
a partner to make a contribution to the Issuer under any provision of the
Amended and Restated Agreement of Limited Partnership of the Issuer (the
"Agreement of Limited Partnership") . Neither the Company nor any other partner
of the Issuer nor any of their respective assets shall be subject to any lien,
levy, execution or any other enforcement procedure relating directly or
indirectly to the MOPPRS or any obligations hereunder; provided, however, that
in the event of a dissolution of the Issuer, any assets of the Issuer that are
received by the Company in such dissolution shall be subject to the claims of
the holders of the MOPPRS for the enforcement of payment thereof.
12. Governing Law. The Indenture and this MOPPRS 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 without regard to
conflict of law principles.
12
<PAGE> 13
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this MOPPRS, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -
_______ Custodian _______
TEN ENT - as tenants by the entireties (Cust) (minor)
JT TEN - as joint tenants with right under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common
------------------
(State)
Additional abbreviations may also be used though not in the above list.
----------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________ this MOPPRS and all
rights thereunder hereby irrevocably constituting and appointing
__________________________________________________ Attorney to transfer this
MOPPRS on the books of the Trustee, with full power of substitution in the
premises.
Dated:___________ ____________________________________________
____________________________________________
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this MOPPRS in every
particular, without alteration or
enlargement or any change whatsoever.
13
<PAGE> 1
EXHIBIT 4.7
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of December 23, 1997 (the "Remarketing
Agreement"), among CP Limited Partnership, a Maryland Limited Partnership (the
"Operating Partnership"), Chateau Communities, Inc., a Maryland corporation (the
"Company"), and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill
Lynch" and, in its capacity as the remarketing dealer hereunder, the
"Remarketing Dealer").
WHEREAS, the Operating Partnership has issued $100,000,000 aggregate
principal amount of its 6.92% MandatOry Par Put Remarketed SecuritiesSM (the
"MOPPRSSM")(1) due December 10, 2014, pursuant to an indenture, dated as of
December 19, 1997, as supplemented by a Supplemental Indenture relating to the
MOPPRS (together, the "Indenture"), between the Operating Partnership and The
First National Bank of Chicago, as trustee (the "Trustee"); and
WHEREAS, the MOPPRS have been sold and delivered initially pursuant to an
underwriting agreement, dated December 18, 1997, among the Company, the
Operating Partnership and Merrill Lynch as supplemented by a terms agreement
dated December 18, 1997 between the Operating Partnership and Merrill Lynch
(together, the "Underwriting Agreement"); and
WHEREAS, the Company and the Operating Partnership have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (No. 333-4544) under the Securities Act of 1933, as amended (the
"1933 Act"), in connection with the offering of, among other securities, Debt
Securities, including the MOPPRS, of the Operating Partnership, which
registration statement was declared effective by order of the Commission on
August 14, 1997, and a related registration statement filed pursuant to Rule
462(b) of the rules and regulations under the 1933 Act (the "1933 Act
Regulations"), which registration statement became effective pursuant to Rule
462(b) on November 21, 1997, and have filed such amendments thereto and such
amended prospectuses as may have been required to the date hereof, and will file
such additional amendments thereto and such additional amended prospectuses as
may hereafter be required; and
WHEREAS, Merrill Lynch is prepared to act as the Remarketing Dealer with
respect to the remarketing of the MOPPRS on December 10, 2004 (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:
- ----------
(1) "MandatOry Par Put Remarketed SecuritiesSM" and "MOPPRSSM" are service marks
owned by Merrill Lynch & Co.
<PAGE> 2
Section 1. Definitions. (a) Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Indenture (including
the form of the MOPPRS).
Section 2. Representations and Warranties. (a) Each of the Operating
Partnership and 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), the Remarketing Date and each date, if any, thereafter,
of delivery of MOPPRS by the Remarketing Dealer (each such date being
hereinafter referred to as a "Representation Date"), that (i) it has or shall
have made all the filings with the Commission that it is required to make under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules
and regulations thereunder (the "1934 Act Regulations") within the 12-month
period prior to the Representation Date (the filings made within the 12 month
period of a Representation Date being referred to as the "1934 Act Documents",
with respect to such Representation Date), (ii) each 1934 Act Document complies
in all material respects with the requirements of the 1934 Act and 1934 Act
Regulations, and each 1934 Act Document (as modified or superseded by
subsequently filed documents at or prior to such date) as of each Representation
Date will not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, (iii) the applicable Remarketing Materials (as defined
herein) will not, as of the Remarketing Date and each date, if any, thereafter,
of delivery of MOPPRS by the Remarketing Dealer, 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, and (iv) no consent,
approval, authorization, order or decree of any court or governmental agency or
body, including as to an effective registration statement under the 1933 Act
with respect to the MOPPRS, is required for the consummation by the Operating
Partnership or the Company of the transactions contemplated by this Agreement or
in connection with the remarketing of MOPPRS pursuant hereto, except such as
have been or shall have been obtained or rendered, as the case may be.
(b) Each of the Operating Partnership and the Company further represents
and warrants to the Remarketing Dealer as of each Representation Date as
follows:
(i) This Agreement has been duly authorized, executed and delivered
by the Company and the Operating Partnership.
(ii) The Indenture has been duly authorized, executed and delivered
by the Operating Partnership and duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"), and, assuming it has been duly
executed and delivered by the Trustee, constitutes a valid and binding
agreement of the Operating Partnership, enforceable against the Operating
Partnership in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers, reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement
2
<PAGE> 3
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(iii) The MOPPRS have been duly authorized and executed by the
Operating Partnership and authenticated, issued and delivered in the
manner provided for in the Indenture and delivered against payment of the
purchase price therefor as provided in the Underwriting Agreement, and
constitute valid and binding obligations of the Operating Partnership,
enforceable against the Operating Partnership in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and are in
the form contemplated by, and entitled to the benefits of, the Indenture.
(iv) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the
Company or the Operating Partnership of its obligations hereunder, in
connection with the remarketing of the MOPPRS hereunder or the
consummation of the transactions contemplated by this Agreement or for the
due execution, delivery or performance of the Indenture by the Operating
Partnership, except such as have been already obtained or shall have been
obtained prior to such remarketing.
(v) The MOPPRS are rated "BBB" by Standard & Poor's Rating Services
and "Baa3" by Moody's Investors Service or such other rating as to which
the Operating Partnership shall have most recently notified the
Remarketing Dealer pursuant to Section 3(a) hereof.
(vi) The accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the
Remarketing Materials are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(vii) The financial statements included or incorporated by reference
in the Remarketing Materials, together with the related schedules and
notes, present fairly the financial position of the Operating Partnership,
the Company and their consolidated subsidiaries and each other applicable
entity at the dates indicated and the statement of operations,
stockholders' equity and cash flows of each of the Operating Partnership,
the Company and their consolidated subsidiaries for the periods specified;
said financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included or incorporated by reference in the Remarketing Materials present
fairly in accordance with GAAP the information required to be stated
3
<PAGE> 4
therein. The pro forma financial statements and the related notes thereto,
if any, included or incorporated by reference in the Remarketing Materials
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(viii) Since the Notification Date, (a) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise or the Operating Partnership and
its subsidiaries considered as one enterprise, or any of the real property
or improvements thereon owned by either the Company or any of its
subsidiaries or the Operating Partnership or any of its subsidiaries (each
individually, a "Property" and collectively, the "Properties"), whether or
not arising in the ordinary course of business (a "Material Adverse
Effect"), (b) no material casualty loss or material condemnation or other
material adverse event with respect to any of the Properties has occurred,
(c) there have been no transactions entered into or acquisitions by the
Company or any of its subsidiaries or the Operating Partnership or any of
its subsidiaries, other than those in the ordinary course of business or
disclosed in the Remarketing Materials, which are material with respect to
the Company and its subsidiaries considered as one enterprise or the
Operating Partnership and its subsidiaries considered as one enterprise,
and (d) except for regular quarterly dividends on the Company's common
stock, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock or by the
Operating Partnership or any of its subsidiaries with respect to its
partnership interests or any class of its capital stock. As used in this
Agreement, the term subsidiary as it relates to the Operating Partnership
includes any corporation, limited liability company, limited or general
partnership, joint venture or other entity through which the Operating
Partnership owns a controlling interest, either directly or indirectly, in
a Property.
(ix) 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, lease and operate its
Properties and to conduct its business as described in the Remarketing
Materials and to enter into and perform its obligations under this
Agreement and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
to so qualify or to be in good standing would not have a Material Adverse
Effect.
(x) The Amended and Restated Agreement of Limited Partnership of the
Operating Partnership (the "Partnership Agreement") has been duly and
validly authorized, executed and delivered by the Company and is a valid
and binding
4
<PAGE> 5
agreement, enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally
and by general principles of equity. The Partnership Agreement has been
duly executed and delivered by the other parties thereto and, to the
Company's knowledge, is a valid and binding agreement, enforceable against
such parties in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting creditors' rights generally and by general principles of
equity. The Operating Partnership and each of its "significant
subsidiaries" (as such term is defined in Rule 1-02 of Regulation S-X
(each, a "Significant Subsidiary")) has been duly formed and is validly
existing as a limited partnership, limited liability company or
corporation, as the case may be, in good standing under the laws of its
state of organization with partnership, limited liability company or
corporate power and authority, as the case may be, to own, lease and
operate its properties, to conduct the business in which it is engaged or
proposes to engage as described in the Prospectus and to enter into and
perform its obligations under this Agreement. The Operating Partnership
and each of its Significant Subsidiaries is duly qualified or registered
as a foreign partnership, limited liability company or corporation, as the
case may be, and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where
the failure to so qualify or register would not have a Material Adverse
Effect. Except as otherwise stated in the Remarketing Materials, all of
the issued and outstanding capital stock or other ownership interests in
each Significant Subsidiary have been duly authorized and validly issued,
are fully paid and non-assessable and are owned by the Company or the
Operating Partnership, directly or indirectly, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity,
except for security interests granted in respect of indebtedness of the
Company or the Operating Partnership or any of its subsidiaries as
described in the Remarketing Materials and except for security interests
which would not have a Material Adverse Effect.
(xi) Neither the Operating Partnership nor the Company nor any of
their subsidiaries is in violation of its charter, by-laws, certificate of
limited partnership or partnership agreement, as the case may be, or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Operating Partnership, the Company or any of their
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Operating Partnership, the
Company or any of their subsidiaries is subject (collectively, "Agreement
and Instruments") except for such defaults that would not result in a
Material Adverse Effect; and the execution, delivery and performance of
this Agreement, the Indenture and the MOPPRS and the consummation of the
transactions contemplated herein and in the Remarketing Materials and
compliance by each of the Operating Partnership and the Company with its
obligations hereunder and under the Indenture and the MOPPRS have been
duly
5
<PAGE> 6
authorized by all necessary corporate and partnership action and do not
and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Operating Partnership, the Company or any subsidiary pursuant to,
the Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter, by-laws, certificate of limited partnership
or partnership agreement of the Operating Partnership of the Company or
any subsidiary, as the case may be, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Operating Partnership, the Company or any subsidiary or any of their
assets, properties or operations, except for such violations that would
not result in a Material Adverse Effect. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Operating
Partnership, the Company or any subsidiary.
(xii) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Operating Partnership or
the Company, threatened, against or affecting the Operating Partnership or
the Company or any subsidiary, which is required to be disclosed in the
1934 Act Documents (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the transactions
contemplated in this Agreement or the performance by each of the Operating
Partnership or the Company of its obligations hereunder; the aggregate of
all pending legal or governmental proceedings to which the Operating
Partnership, the Company or any subsidiary is a party or of which any of
their respective property or assets is the subject which are not described
in the 1934 Act Documents, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result in
a Material Adverse Effect.
(xiii) Neither the Company nor the Operating Partnership is an
"investment company" or an entity "controlled" by an "investment company"
as such terms are defined in the Investment Company Act of 1940, as
amended.
(xiv) The Company is, and has been since the taxable year ended
December 31, 1996, organized in conformity with the requirements for
qualification as a real estate investment trust ("REIT") under the
Internal Revenue Code of 1986, as amended (the "Code"), and the Company's
method of operation will enable it to meet the requirements for taxation
as a REIT under the Code.
6
<PAGE> 7
(xv) Each of the Company, the Operating Partnership and their
respective subsidiaries, as the case may be, has good and marketable title
to all items of real property owned by them, in each case free and clear
of all liens, encumbrances, claims, security interests and defects, other
than those referred to in the 1934 Act Documents or which are not material
in amount; (b) all liens, charges, encumbrances, claims, or restrictions
on or affecting the properties and assets owned by the Company, the
Operating Partnership or their respective subsidiaries which are required
to be disclosed in the 1934 Act Documents are disclosed therein; (c)
except as disclosed in the 1934 Act Documents, none of the Company, the
Operating Partnership or any of its subsidiaries, or, to the best of the
knowledge of the Company and the Operating Partnership, any lessee under a
lease relating to any of the real property or improvements thereon owned
by either the Company, the Operating Partnership or any of its
subsidiaries (each individually, a "Property" and collectively, the
"Properties"), is in default under any of the leases relating to the
Properties and neither the Company nor the Operating Partnership knows of
any event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases, except such
defaults that would not have a Material Adverse Effect; (d) no tenant
under any of the leases pursuant to which the Company, the Operating
Partnership or any of its subsidiaries leases any of its real property or
improvements has an option to purchase the premises demised under such
lease; (e) each of the Properties is in compliance with all applicable
codes and zoning laws and regulations, except for such failures to comply
which would not individually or in the aggregate have a Material Adverse
Effect; and (f) neither the Company nor the Operating Partnership has
knowledge of any pending or threatened condemnation, zoning change, or
other proceeding or action that will in any manner affect the size of, use
of, improvements on, construction on, or access to the Properties, except
such proceedings or actions that would not have a Material Adverse Effect.
(xvi) The Operating Partnership or its subsidiaries have obtained or
have the benefit of title insurance on all the Properties described in the
1934 Act Documents as owned by the Operating Partnership or its
subsidiaries in an amount as is customary for companies engaged in
business similar to the Operating Partnership, except where the failure to
do so would not result in a Material Adverse Effect.
(xvii) Except as disclosed in the 1934 Act Documents, each of the
Company and the Operating Partnership has no knowledge of (a) the unlawful
presence of any substance, material or waste which is regulated by any
federal, state or local governmental or quasi-governmental authority,
including, without limitation, (i) any substance, material or waste
defined, used or listed as a "hazardous waste", "extremely hazardous
waste", "restricted hazardous waste", "hazardous substance", "hazardous
material", "toxic substance" or other similar terms as defined or used in
any Environmental Law (as defined below), (ii) any petroleum products,
asbestos, polychlorinated biphenyls, lead-based paint, flammable
explosives or radioactive materials and (iii) any additional substances or
materials which are hazardous or toxic
7
<PAGE> 8
substances under any Environmental Law relating to the Properties
(collectively, "Hazardous Materials") on any of the Properties or of (b)
any spill, release, discharge or disposal of Hazardous Materials that have
occurred or are presently occurring at, from or onto any of the Properties
or any properties near or adjacent to the Properties, which presence or
occurrence would result in a Material Adverse Effect. Except as disclosed
in the 1934 Act Documents, in connection with the construction on or
operation and use of the Properties, the Company and the Operating
Partnership represent that, as of the date of this Agreement, each of the
Company and the Operating Partnership has no knowledge of any material
failure to comply with all applicable local, state and federal
environmental laws, regulations, ordinances and administrative and
judicial orders relating to the use, generation, recycling, reuse, sale,
storage, handling, transport and disposal of any Hazardous Materials
(collectively, "Environmental Laws") that would have a Material Adverse
Effect.
(c) Any certificate signed by any director or officer of the Operating
Partnership (or any officer of the Company) and delivered to the Remarketing
Dealer or to counsel for the Remarketing Dealer in connection with the
remarketing of the MOPPRS shall be deemed a representation and warranty by the
Operating Partnership and the Company to the Remarketing Dealer as to the
matters covered thereby.
(d) The Remarketing Dealer represents and warrants to the Operating
Partnership and the Company that this Agreement has been duly authorized,
executed and delivered by the Remarketing Dealer.
Section 3. Covenants of the Operating Partnership and the Company. Each of
the Company and the Operating Partnership covenants with the Remarketing Dealer
as follows:
(a) The Operating Partnership will provide prompt notice by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), to the Remarketing Dealer of (i) any notification or announcement
by a "nationally recognized statistical rating agency" (as defined by the
Commission for purposes of Rule 436(g)(2) under the 1933 Act) with regard to the
ratings of any securities of the Operating Partnership or the Company,
including, without limitation, notification or announcement of a downgrade in or
withdrawal of the rating of any security of the Operating Partnership or the
Company or notification or announcement of the placement of any rating of any
securities of the Operating Partnership or the Company under surveillance or
review, including placement on CreditWatch or on Watch List with negative
implications, or (ii) the occurrence at any time of any event set forth in
Section 8(b) of this Agreement.
(b) The Operating Partnership will furnish to the Remarketing Dealer:
(i) if required as provided in paragraph (e) below for purposes of
the remarketing, a then currently effective registration statement under
the 1933 Act and a then current prospectus relating to the MOPPRS to be
used by the Remarketing Dealer
8
<PAGE> 9
for remarketing and resale of the MOPPRS (such registration statement and
any amendments thereto, including any such prospectus relating to the
MOPPRS constituting a part thereof, and all documents incorporated therein
by reference, as from time to time amended or supplemented pursuant to the
1934 Act, the 1933 Act, or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus," respectively, except that
if any revised prospectus shall be provided to the Remarketing Dealer by
the Operating Partnership for use in connection with the remarketing of
the MOPPRS which differs from the Prospectus on file at the Commission at
the time the Registration Statement becomes effective (whether or not such
revised prospectus is required to be filed by the Operating Partnership
pursuant to Rule 424(b) of the 1933 Act Regulations, the term "Prospectus"
shall refer to such revised prospectus from and after the time it is first
provided to the Remarketing Dealer for such use);
(ii) each 1934 Act Document filed within 12 months of the
Remarketing Date or the Notification Date;
(iii) in connection with the remarketing of MOPPRS, such other
information as the Remarketing Dealer may reasonably request from time to
time; and
(iv) each document filed by the Company or the Operating Partnership
with the Commission pursuant to the 1933 Act or the 1934 Act or otherwise
after the date hereof.
The Operating Partnership agrees to provide the Remarketing Dealer with as
many copies of the foregoing written materials and other Operating Partnership
approved information as the Remarketing Dealer may reasonably request for use in
connection with the remarketing of MOPPRS, and consents to the use thereof for
such purpose, and agrees to provide the Remarketing Dealer with the opportunity
to perform customary due diligence with respect thereto a reasonable period of
time prior to the Remarketing Date.
(c) If, at any time during which the Remarketing Dealer would be obligated
to take any action under this Agreement, any event or condition known to the
Operating Partnership relating to or affecting the Company, the Operating
Partnership, any subsidiary thereof or the MOPPRS shall occur which could
reasonably be expected to cause any of the reports, documents, materials or
information referred to in paragraph (b) (i), (ii) or (iii) above 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 Operating Partnership shall promptly notify the Remarketing
Dealer in writing of the circumstances and details of such event or condition.
(d) So long as the MOPPRS are outstanding, the Company and the Operating
Partnership will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations, provided that this covenant shall not apply to the
extent that the Company's or Operating Partnership's failure to file any
document does not, in the reasonable judgment of the Remarketing Dealer,
9
<PAGE> 10
have a material adverse effect on the proposed remarketing of the MOPPRS as
contemplated by this Agreement.
(e) The Company and the Operating Partnership will comply with the 1933
Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations and
the 1939 Act and the rules and regulations of the Commission thereunder so as to
permit the completion of the remarketing of the MOPPRS as contemplated in this
Agreement and in the prospectus relating to the initial issuance of the MOPPRS.
In furtherance of the foregoing, if it shall be necessary, in the opinion of
counsel for the Remarketing Dealer or for the Operating Partnership to have a
currently effective Registration Statement and a current Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations and the
Commission's interpretations of the 1933 Act and the 1933 Act Regulations, or if
at any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the MOPPRS, any event shall occur or condition shall
exist as a result of which it is necessary, in the opinion of counsel for the
Remarketing Dealer or for the Operating Partnership, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statements 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, the Operating Partnership, at its expense, will promptly (i) prepare
and file with the Commission such Registration Statement and Prospectus or such
amendment or supplement as may be necessary to correct such statement or
omission as referred to above or to make the Registration Statement or the
Prospectus comply with such requirements as referred to above, (ii) furnish to
the Remarketing Dealer such number of copies of such Registration Statement and
Prospectus or such amendment, supplement or other document as the Remarketing
Dealer may reasonably request and (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 the Registration Statement and
Prospectus, as amended or supplemented, of counsel for the Operating Partnership
satisfactory to the Remarketing Dealer and a "comfort letter" from the Operating
Partnership's independent accountants, in each case in form and substance
satisfactory to the Remarketing Dealer, of the same tenor as the officers'
certificate, opinion and comfort letter, respectively, delivered pursuant to the
Underwriting Agreement, but modified to relate to the Registration Statement and
Prospectus as amended or supplemented to the date thereof.
(f) The Company and Operating Partnership agree that neither they nor any
of their subsidiaries or affiliates shall defease, purchase or otherwise
acquire, or enter into any agreement to defease, purchase or otherwise acquire,
any of the MOPPRS prior to the remarketing thereof by the Remarketing Dealer,
other than pursuant to Section 4(g) or 4(h) of this Agreement.
(g) Notwithstanding any provision to the contrary set forth in the
Indenture, the Operating Partnership shall (i) use its best efforts to maintain
the MOPPRS in book-entry form with the Depositary Trust Company ("DTC") or any
successor thereto and to appoint a successor depositary to the extent necessary
to maintain the MOPPRS in book-entry form, and (ii) waive
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any discretionary right it otherwise has under the Indenture to cause the MOPPRS
to be issued in certificated form.
(h) To the extent that a Registration Statement and current Prospectus are
required as contemplated in paragraph (e) above, the Company and the Operating
Partnership will comply with covenants of the same tenor as those set forth in
the Underwriting Agreement, but modified to relate to the Registration Statement
and the Prospectus.
Section 4. Appointment and Obligations of the Remarketing Dealer. (a)
Unless this Agreement is otherwise terminated in accordance with Section 11
hereof, in accordance with the terms, but subject to the conditions, of this
Agreement, the Operating Partnership hereby appoints Merrill Lynch, and Merrill
Lynch hereby accepts such appointment, as the exclusive Remarketing Dealer with
respect to $100,000,000 aggregate principal amount of MOPPRS and agrees, subject
to the conditions set forth herein, to remarket the MOPPRS, subject further to
repurchase of the MOPPRS in accordance with clause (g) of this section or
redemption of the MOPPRS in accordance with clause (h) of this section.
(b) It is expressly understood and agreed by the parties hereto that the
obligations of the Remarketing Dealer hereunder with respect to the MOPPRS to be
remarketed on the Remarketing Date are conditioned on the Remarketing Dealer's
election on the Notification Date to purchase the MOPPRS for remarketing on the
Remarketing Date. It is further expressly understood and agreed by and between
the parties hereto that, if the Remarketing Dealer has elected to remarket the
MOPPRS pursuant to clause (c) below, the Remarketing Dealer shall not be
obligated to set the Interest Rate to Maturity on any MOPPRS, to remarket any
MOPPRS or to perform any of the other duties set forth herein at any time after
the Notification Date that (i) any of the conditions set forth in clause (a) of
Section 8 hereof shall not have been fully and completely met to the reasonable
satisfaction of the Remarketing Dealer, or (ii) any of the events set forth in
clause (b) of Section 8 hereof shall have occurred.
(c) On a Business Day not more than fifteen nor less than five Business
Days prior to the Remarketing Date, the Remarketing Dealer shall notify the
Operating Partnership and the Trustee as to whether it elects to purchase the
MOPPRS on the Remarketing Date (the "Notification Date"). If, and only if, the
Remarketing Dealer so elects, the MOPPRS shall be subject to mandatory tender to
the Remarketing Dealer, and the Remarketing Dealer shall be obligated to
purchase the MOPPRS, for remarketing on the Remarketing Date, subject in each
case to the conditions described herein.
(d) Subject to the Remarketing Dealer's election to remarket the MOPPRS as
provided in clause (c) above, the Interest Rate to Maturity shall be determined
by the Remarketing Dealer by 3:30 p.m., New York City time, on the third
Business Day preceding the Remarketing Date (the "Determination Date") to the
nearest one hundred-thousandth (0.00001) of one percent per annum, and will be
equal to the sum of 5.753% (the "Base Rate") plus the Applicable Spread (as
defined below), which will be based on the Dollar Price (as defined below) of
the MOPPRS.
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The "Applicable Spread" will be the lowest bid indication, expressed as a
spread (in the form of a percentage or in basis points) above the Base Rate,
obtained by the Remarketing Dealer on the Determination Date from the bids
quoted by five Reference Corporate Dealers (as defined below) for the full
aggregate principal amount of the MOPPRS at the Dollar Price, but assuming (i)
an issue date equal to the Remarketing Date, with settlement on such date
without accrued interest, (ii) a maturity date equal to the Stated Maturity Date
of the MOPPRS, and (iii) a stated annual interest rate equal to the Base Rate
plus the spread bid by the applicable Reference Corporate Dealer. If fewer than
five Reference Corporate Dealers bid as described above, then the Applicable
Spread shall be the lowest of such bid indications obtained as described above.
The Interest Rate to Maturity announced by the Remarketing Dealer, absent
manifest error, shall be binding and conclusive upon the Beneficial Owners and
Holders of the MOPPRS, the Operating Partnership, the Company and the Trustee.
"Dollar Price" means, with respect to the MOPPRS, the present value, as of
the Remarketing Date, of the Remaining Scheduled Payments (as defined below)
discounted to the Remarketing Date, on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months), at the Treasury Rate (as defined
below).
"Reference Corporate Dealers" mean leading dealers of publicly traded debt
securities of the Operating Partnership in The City of New York (which may
include the Remarketing Dealer or one of its affiliates) selected by the
Remarketing Dealer.
"Treasury Rate" means, with respect to the Remarketing Date, the rate per
annum equal to the semi-annual equivalent yield to maturity or interpolated (on
a day count basis) yield to maturity of the Comparable Treasury Issues (as
defined below), assuming a price for the Comparable Treasury Issues (expressed
as a percentage of its principal amount), equal to the Comparable Treasury Price
(as defined below) for the Remarketing Date.
"Comparable Treasury Issues" means the United States Treasury security or
securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
MOPPRS being remarketed.
"Comparable Treasury Price" means, with respect to the Remarketing Date,
(a) the offer prices for the Comparable Treasury Issues (expressed in each case
as a percentage of its principal amount) on the Determination Date, as set forth
on "Telerate Page 500" (or such other page as may replace Telerate Page 500), or
(b) if such page (or any successor page) is not displayed or does not contain
such offer prices on the Determination Date, (i) the average of the Reference
Treasury Dealer Quotations for the Remarketing Date, after excluding the highest
and lowest such Reference Treasury Dealer Quotations, 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.
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"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and the Remarketing Date, the offer prices for the
Comparable Treasury Issues (expressed in each case as a percentage of its
principal amount) 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 each of Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Merrill Lynch, Morgan Stanley & Co.
Incorporated and Salomon Brothers Inc and their respective successors; provided,
however, that if any of the foregoing or their affiliates shall cease to be a
primary U.S. Government securities dealer in The City of New York (a "Primary
Treasury Dealer"), the Remarketing Dealer shall substitute therefor another
Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to the MOPPRS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only, that would be due after the Remarketing Date
to and including the Stated Maturity Date; provided, however, that if the
Remarketing Date is not an Interest Payment Date with respect to the MOPPRS, the
amount of the next succeeding scheduled interest payment thereon, calculated at
the Base Rate only, will be reduced by the amount of interest accrued thereon,
calculated at the Base Rate only, to the Remarketing Date.
(e) Subject to the Remarketing Dealer's election to remarket the MOPPRS as
provided in clause (c) above, the Remarketing Dealer shall notify the Operating
Partnership, the Trustee and DTC by telephone, confirmed in writing (which may
include facsimile or other electronic transmission), by 4:00 p.m., New York City
time, on the Determination Date of the Interest Rate to Maturity applicable to
the MOPPRS effective from and including the Remarketing Date.
(f) In the event that the MOPPRS are remarketed as provided herein, the
Remarketing Dealer shall make, or cause the Trustee to make, payment to the DTC
Participant of each tendering Beneficial Owner of MOPPRS subject to remarketing,
by book entry through DTC by the close of business on the Remarketing Date
against delivery through DTC of such Beneficial Owner's tendered MOPPRS, of 100%
of the principal amount of the tendered MOPPRS that have been purchased for
remarketing by the Remarketing Dealer. The Operating Partnership shall make, or
cause the Trustee to make, payment of interest to each Beneficial Owner of
MOPPRS due on the Remarketing Date by book entry through DTC by the close of
business on the Remarketing Date.
(g) Subject to Section 11(c) of this Agreement, in the event that (i) the
Remarketing Dealer for any reason does not notify the Operating Partnership of
the Interest Rate to Maturity by 4:00 p.m., New York City time, on the
Determination Date, or (ii) prior to the Remarketing Date, the Remarketing
Dealer has resigned and no successor has been appointed on or before the
Determination Date, or (iii) at any time after the Remarketing Dealer elects on
the Notification Date to remarket the MOPPRS any event as set forth in Section 8
or Section 11 of this Agreement shall have occurred, or (iv) the Remarketing
Dealer for any reason does not elect
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<PAGE> 14
to purchase the MOPPRS for remarketing on the Remarketing Date, or (v) the
Remarketing Dealer for any reason does not purchase all tendered MOPPRS on the
Remarketing Date, the Operating Partnership shall repurchase the MOPPRS as a
whole on the Remarketing Date at a price equal to 100% of the principal amount
of the MOPPRS plus all accrued and unpaid interest, if any, on the MOPPRS to the
Remarketing Date. In any such case, payment will be made by the Operating
Partnership through the Trustee to the DTC Participant of each tendering
Beneficial Owner of MOPPRS, by book-entry through DTC by the close of business
on the Remarketing Date against delivery through DTC of such Beneficial Owner's
tendered MOPPRS. Payments or performance made by the Operating Partnership
hereunder shall not relieve the Remarketing Dealer of its obligations under this
Agreement arising out of any breach of this Agreement by the Remarketing Dealer.
(h) If the Remarketing Dealer elects to remarket the MOPPRS as provided in
clause (c) above, then not later than the Business Day immediately preceding the
Determination Date, the Operating Partnership shall notify the Remarketing
Dealer and the Trustee if the Operating Partnership irrevocably elects to
exercise its right to redeem the MOPPRS, in whole but not in part, from the
Remarketing Dealer on the Remarketing Date at the Optional Redemption Price. The
"Optional Redemption Price" shall be the greater of (i) 100% of the principal
amount of the MOPPRS and (ii) the sum of the present values of the Remaining
Scheduled Payments thereon, as determined in good faith by the Remarketing
Dealer, discounted to the Remarketing Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate, plus in
either case accrued and unpaid interest from the Remarketing Date on the
principal amount being redeemed to the date of redemption. If the Operating
Partnership elects to redeem the MOPPRS, it shall pay the redemption price
therefor in same-day funds by wire transfer to an account designated by the
Remarketing Dealer on the Remarketing Date.
(i) The Remarketing Dealer may, in accordance with the terms of the
Indenture, modify the tender and settlement procedures set forth in the
Indenture in order to facilitate the tender and settlement process.
(j) The tender and settlement procedures described above, including
provisions for payment by purchasers of MOPPRS in the remarketing or for payment
to selling Beneficial Owners of tendered MOPPRS, may be modified to the extent
required by DTC or, if agreed to by the Remarketing Dealer in accordance with
Section 8(b)(viii) of this Agreement, to the extent required to facilitate the
tender and remarketing of MOPPRS in certificated form, if the book-entry system
is no longer available for the MOPPRS at the time of the remarketing.
Section 5. Fees and Expenses. Subject to Section 11 of this Agreement, for
its services in performing its duties set forth herein, the Remarketing Dealer
will not receive any fees or reimbursement of expenses from the Operating
Partnership.
Section 6. Resignation of the Remarketing Dealer. The Remarketing Dealer
may resign and be discharged from its duties and obligations hereunder at any
time, such resignation to be effective 10 days after delivery of a written
notice to the Operating Partnership and the Trustee
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<PAGE> 15
of such resignation, provided that no such resignation shall occur under this
sentence after the Notification Date. 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 Section 11(b) hereof. It shall be the sole obligation of the
Operating Partnership to appoint a successor Remarketing Dealer.
Section 7. Dealing in the MOPPRS; Purchase of MOPPRS by the Operating
Partnership. (a) Merrill Lynch, 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 MOPPRS. Merrill Lynch, as Holder or Beneficial
Owner of the MOPPRS, 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
MOPPRS 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 Operating Partnership or
the Company as freely as if it did not act in any capacity hereunder.
(b) The Operating Partnership or the Company may purchase MOPPRS in the
remarketing, provided that the Interest Rate to Maturity established with
respect to MOPPRS in the remarketing is not different from the Interest Rate to
Maturity that would have been established if the Operating Partnership or the
Company had not purchased such MOPPRS.
Section 8. Conditions to Remarketing Dealer's Obligations. The obligations
of the Remarketing Dealer under this Agreement have been undertaken in reliance
on, and shall be subject to, (a) the due performance in all material respects by
the Company and the Operating Partnership of their obligations and agreements as
set forth in this Agreement and the accuracy in all material respects as of the
dates specified herein of the representations and warranties in this Agreement
and any certificate delivered pursuant hereto, and (b) the further condition
that none of the following events shall have occurred after the Remarketing
Dealer elects on the Notification Date to remarket the MOPPRS:
(i) the rating of any securities of the Operating Partnership or the
Company shall have been down-graded or put under surveillance or review,
including being put on CreditWatch or Watch List with negative
implications, or withdrawn by a nationally recognized statistical rating
agency;
(ii) without the prior written consent of the Remarketing Dealer,
the Indenture (including the MOPPRS) 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 reasonable judgment of the
Remarketing Dealer materially changes the nature of the MOPPRS or the
remarketing procedures (it being understood that, notwithstanding the
provisions of this clause (ii), the Operating Partnership shall not be
prohibited from amending the Indenture);
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(iii) trading in any securities of the Operating Partnership or the
Company shall have been suspended or materially limited by the Commission
or the New York Stock Exchange, or if trading generally on the American
Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market shall have been suspended or materially limited, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges for
prices shall have been required, by any of said exchanges or by such
system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or if a
banking moratorium shall have been declared by either Federal or New York
authorities;
(iv) there shall have occurred any material adverse change in the
financial markets in the United States or the international financial
markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective
change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
reasonable judgment of the Remarketing Dealer, impracticable to remarket
the MOPPRS or to enforce contracts for the sale of the MOPPRS;
(v) 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, with respect to the MOPPRS shall have
occurred and be continuing;
(vi) a material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise or the
Operating Partnership and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, shall have
occurred;
(vii) if the Prospectus is required under the 1933 Act to be
delivered in connection with the remarketing of the MOPPRS, the Operating
Partnership shall fail to furnish to the Remarketing Dealer on the
Remarketing Date the officers' certificate, opinion and comfort letter
referred to in Section 3(e) 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 MOPPRS 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; or
(viii) the MOPPRS are not maintained in book-entry form with DTC or
any successor thereto; provided, that the Remarketing Dealer, subject to
receipt of an opinion of counsel for the Operating Partnership reasonably
satisfactory to the Remarketing Dealer, shall waive the foregoing
condition if in the Remarketing Dealer's reasonable judgment (x) the
Indenture and the MOPPRS can be amended, and they are amended, so as to
permit the remarketing of the MOPPRS in certificated form and (y) it is
practical
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to remarket the MOPPRS with the same effect and on the same terms as
otherwise contemplated herein;
and the Remarketing Dealer shall have received on the Remarketing Date a
certificate of the chief executive officer and of the chief financial officer of
the Operating Partnership and the Company, dated as of the Remarketing Date, to
the effect that (i) the representations and warranties in this Agreement are
true and correct in all material respects with the same force and effect as
though expressly made at and as of the Remarketing Date, (ii) each of the
Company and the Operating Partnership has complied in all material respects with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Remarketing Date and (iii) none of the events
specified in the preceding clause (b) has occurred.
(c) In furtherance of the foregoing, the effectiveness of the Remarketing
Dealer's election on the Notification Date to remarket the MOPPRS shall be
subject to the condition that the Remarketing Dealer shall have received a
certificate of the chief executive officer and of the chief financial officer of
the Operating Partnership and the Company, dated as of the Notification Date, to
the effect that (i) the Operating Partnership has, prior to the Remarketing
Dealer's election on the Notification Date to remarket the MOPPRS, provided the
Remarketing Dealer with notice of all events as required under Section 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) each of the Company and the Operating Partnership has complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Notification Date. Such
certificate shall be delivered by the Operating Partnership to the Remarketing
Dealer as soon as practicable following notification by the Remarketing Dealer
to the Operating Partnership on the Notification Date of its election to
remarket the MOPPRS and in any event prior to the Determination Date.
In the event of the failure of any of the foregoing conditions, the
Remarketing Dealer may terminate its obligations under this Agreement or
redetermine the Interest Rate to Maturity as provided in Section 11.
Section 9. Indemnification. (a) The Company and the Operating Partnership,
jointly and severally, agree to indemnify and hold harmless the Remarketing
Dealer and its officers, directors and employees and each person, if any, who
controls the Remarketing Dealer within the meaning of Section 20 of the 1934 Act
as follows:
(i) against any loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of, (A) the failure to have an
effective registration statement under the 1933 Act relating to the
MOPPRS, if required, or the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Operating Partnership failed to
notify the Remarketing Dealer of such delivery requirement or failed to
provide the Remarketing Dealer with an updated Prospectus for delivery, or
(B) any untrue statement or alleged untrue statement of a material fact
contained in any of the Remarketing Materials (including any incorporated
documents), or (C) the omission or alleged
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omission therefrom of a material fact necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading, or (D) any violation by the Operating Partnership or the
Company of, or any failure by the Operating Partnership or the Company to
perform any of its obligations under, this Agreement, or (E) the acts or
omissions of the Remarketing Dealer in connection with its duties and
obligations hereunder except that are finally judicially determined to be
due to its gross negligence or willful misconduct;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever arising out of, or based upon, any of items (A) through (E) in
clause (i) above; provided that such settlement is effected with the
written consent of the Operating Partnership, which consent shall not be
unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Remarketing Dealer),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever arising out of,
or based upon, any of items (A) through (E) in clause (i) above to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that the foregoing indemnity shall not apply to any losses,
liabilities, claims, damages and expenses to the extent arising out of any
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Operating Partnership by the Remarketing
Dealer expressly for use in the Remarketing Materials.
(b) The Remarketing Dealer agrees to indemnify and hold harmless the
Company, the Operating Partnership, their directors and each of the officers who
signed the Registration Statement, from and against any loss, liability, claim,
damage and expense, as incurred, but only with respect to untrue statements or
omissions made in the Remarketing Materials in reliance upon and in conformity
with information furnished to the Operating Partnership in writing by the
Remarketing Dealer expressly for use in such Remarketing Materials. The
indemnity agreement in this paragraph shall extend upon the same terms and
conditions to each person, if any, who controls the Company or the Operating
Partnership within the meaning of Section 20 of the 1934 Act.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have
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otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to clause (a) above, counsel to the indemnified parties
shall be selected by Merrill Lynch, and, in the case of parties indemnified
pursuant to clause (b) above, counsel to the indemnified parties shall be
selected by the Operating Partnership. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 9 or Section 10 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission or fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) The indemnity agreements contained in this Section 9 shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of the Remarketing Dealer, and shall survive the termination or
cancellation of this Agreement and the remarketing of any MOPPRS hereunder.
Section 10. Contribution. If the indemnification provided for in Section 9
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Operating
Partnership or the Company on the one hand and the Remarketing Dealer on the
other hand from the remarketing of the MOPPRS pursuant to this Agreement or (ii)
if the allocation provided by clause (i) 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 Operating
Partnership or the Company on the one hand and of the Remarketing Dealer on the
other hand in connection with the acts, failures to act, statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Operating Partnership or the Company
on the one hand and the Remarketing Dealer on the other hand in connection with
the remarketing of the MOPPRS pursuant to this Agreement shall be deemed to be
in the same respective proportions as (i) the aggregate principal amount of the
MOPPRS, and (iii) the aggregate positive difference, if any, between the price
paid by the Remarketing Dealer for the MOPPRS tendered on the
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Remarketing Date and the price at which the MOPPRS are sold by the Remarketing
Dealer in the remarketing.
The relative fault of the Operating Partnership or the Company on the one
hand and the Remarketing Dealer on the other hand shall be determined by
reference to, among other things, the responsibility hereunder of the applicable
party for any act or failure to act relating to the losses, liabilities, claims,
damages or expenses incurred or, in the case of any losses, liabilities, claims,
damages or expenses arising out of any untrue or alleged untrue statement of a
material fact contained in any of the Remarketing Materials or the omission or
alleged omission to state a material fact therefrom, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Operating
Partnership or by the Remarketing Dealer and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Operating Partnership, the Company and the Remarketing Dealer agree
that it would not be just and equitable if contribution pursuant to this Section
10 were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 10. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in this
Section 10 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such act or failure to act or untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 10, the Remarketing Dealer
shall not be required to contribute any amount in excess of the amount by which
the total price at which the MOPPRS remarketed by it and resold to the public
were sold to the public exceeds the amount of any damages which the Remarketing
Dealer has otherwise been required to pay by reason of any act or failure to act
for which it is responsible hereunder or any untrue or alleged untrue statement
or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 10, each person, if any, who controls the
Remarketing Dealer within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Remarketing
Dealer or the Company, and each director of the Operating Partnership or the
Company, each officer of the Operating Partnership or the Company who signed the
Registration Statement, and each person, if any, who controls the Operating
Partnership or the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Operating Partnership or the Company.
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Section 11. Termination of Remarketing Agreement or Redetermination of
Interest Rate to Maturity. (a) This Agreement shall terminate as to the
Remarketing Dealer on the effective date of the resignation of the Remarketing
Dealer pursuant to Section 6 hereof or if the Remarketing Dealer does not elect
to remarket the MOPPRS pursuant to Section 4(c) hereof or upon the notification
of the Remarketing Dealer by the Operating Partnership of its election to redeem
the MOPPRS pursuant to Section 4(h) hereof.
(b) In addition, the Remarketing Dealer may terminate all of its
obligations under this Agreement immediately by notifying the Operating
Partnership and the Trustee of its election to do so, at any time on or before
the Remarketing Date, in the event that: (i) any of the conditions referred to
or set forth in Section 8 (a) hereof have not been met or satisfied in full,
(ii) any of the events set forth in Section 8(b) shall have occurred after the
Remarketing Dealer elects on the Notification Date to remarket the MOPPRS or
(iii) the Remarketing Dealer determines, in its discretion, after consultation
with the Operating Partnership, that it shall not have received all of the
information, whether or not specifically referenced herein, reasonably necessary
to fulfill its obligations under this Agreement.
(c) Notwithstanding any provision herein to the contrary, in lieu of
terminating this Agreement pursuant to Section 11(b) above, upon the occurrence
of any of the events set forth therein, the Remarketing Dealer, in its sole
discretion at any time between the Determination Date and 3:30 p.m., New York
City time, on the Business Day immediately preceding the Remarketing Date, may
elect to purchase the MOPPRS for remarketing and determine a new Interest Rate
to Maturity in the manner provided in Section 4(d) of this Agreement, except
that for purposes of determining the new Interest Rate to Maturity pursuant to
this paragraph the Determination Date referred to therein shall be the date of
such election and redetermination. The Remarketing Dealer shall notify the
Operating Partnership, the Trustee and DTC by telephone, confirmed in writing
(which may include facsimile or other electronic transmission), by 4:00 p.m.,
New York City time, on the date of such election, of the new Interest Rate to
Maturity applicable to the MOPPRS. Thereupon, such new Interest Rate to Maturity
shall supersede and replace any Interest Rate to Maturity previously determined
by the Remarketing Dealer and, absent manifest error, shall be binding and
conclusive upon the Beneficial Owners and Holders of the MOPPRS on or after the
Remarketing Date, the Operating Partnership and the Trustee; provided, however,
that the Remarketing Dealer, by redetermining the Interest Rate to Maturity upon
the occurrence of any event set forth in Section 11(b) as set forth above, shall
not thereby be deemed to have waived its right to determine a new Interest Rate
to Maturity or terminate this Agreement upon the occurrence of any other event
set forth in Section 11(b).
(d) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
that, in the case of termination pursuant to Section 11(b) of this Agreement,
the Operating Partnership or the Company shall reimburse the Remarketing Dealer
for all of its out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Remarketing Dealer in connection with the
remarketing, and except further as set forth in Section 11(e) below. Sections 1,
9, 10, 11(d) and 11(e) shall survive such termination and remain in full force
and effect.
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(e) In the case of either (i) termination of this Agreement pursuant to
Section 11(b) or (ii) the occurrence, prior to the Remarketing Dealer's election
on the Notification Date to remarket the MOPPRS, of any event set forth in
Section 8(b)(ii), (v) or (viii), upon the request of the Remarketing Dealer, the
Operating Partnership or the Company shall immediately following the Call Price
Determination Date (as defined below) pay the Remarketing Dealer, in same-day
funds by wire transfer to an account designated by the Remarketing Dealer, the
fair market value, calculated as set forth below, of the Remarketing Dealer's
right to purchase and remarket the MOPPRS pursuant to this Agreement (the "Call
Price").
In the case of termination of this Agreement pursuant to Section 11(b),
the Call Price shall be equal to the excess, if any, of (i) the present value of
the Remaining Scheduled Payments determined as provided in Section 4 over (ii)
the aggregate principal amount of the MOPPRS.
In the case of the occurrence, prior to the Remarketing Dealer's election
on the Notification Date to remarket the MOPPRS, of any event set forth in
Section 8(b)(ii) or (v) or (viii), the Call Price shall be determined in good
faith by the Remarketing Dealer on a commercially reasonable basis by reference
to, among other factors, the formulation set forth in the preceding paragraph.
The Remarketing Dealer shall determine the applicable Call Price on the
Business Day immediately following the date of termination or notification of
the occurrence, prior to the Remarketing Dealer's election on the Notification
Date to remarket the MOPPRS, of any event set forth in Section 8(b)(ii), (v) or
(viii), as the case may be, or as soon as practicable thereafter (the "Call
Price Determination Date"). The Remarketing Dealer shall promptly notify the
Operating Partnership of the Call Price Determination Date and 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.
(f) This Agreement shall not be subject to termination by the Operating
Partnership or the Company.
Section 12. Remarketing Dealer' 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 Operating Partnership or the Company or to any
Beneficial Owner or Holder of MOPPRS in its individual capacity or as
Remarketing
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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 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE.
Section 14. 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
MOPPRS are outstanding or the completion of the remarketing of the MOPPRS.
Regardless of any termination of this Agreement pursuant to any of the
provisions hereof, the obligations of the Operating Partnership pursuant to
Sections 9, 10 and 11 hereof shall remain operative and in full force and effect
until fully satisfied.
Section 15. Successors and Assigns. The rights and obligations of the
Operating Partnership or 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 without the prior written consent of
the Operating Partnership. This Agreement shall inure to the benefit of and be
binding upon the Operating Partnership, 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 1933 Act or Section 20 of the 1934 Act, or any indemnified
party to the extent provided in Section 9 hereof, or any person entitled to
contribution to the extent provided in Section 10 hereof. The terms "successors"
and "assigns" shall not include any purchaser of any MOPPRS merely because of
such purchase.
Section 16. 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 17. 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.
Section 18. 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.
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Section 19. Amendments. This Agreement may be amended by any instrument in
writing signed by each of the parties hereto so long as this Agreement as
amended is not inconsistent with the Indenture in effect as of the date of any
such amendment.
Section 20. 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 mailed, registered or certified mail, return receipt requested and
postage prepaid, addressed as follows:
(a) to the Company and the Operating Partnership:
CP Limited Partnership
6430 South Quebec Street
Englewood, Colorado
Attention: Gary P. McDaniel
Facsimile No.: (303) 741-1620
(b) to Merrill Lynch:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1310
Attention: Swaps Options Desk
Facsimile No.: (212) 449-8920
With a copy to:
Scott Primrose
Facsimile No.: (212) 449-2234
or to such other address as the Operating Partnership or the Remarketing Dealer
shall specify in writing.
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<PAGE> 25
IN WITNESS WHEREOF, each of the Operating Partnership, 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.
CP LIMITED PARTNERSHIP
By: Chateau Communities, Inc., one of its general
partners
By
------------------------------------------------
Name: Gary P. McDaniel
Title: Chief Executive Officer
By: ROC Communities, Inc., its other general
partner
By
------------------------------------------------
Name: Gary P. McDaniel
Title: Chief Executive Officer
CHATEAU COMMUNITIES, INC.
By
------------------------------------------------
Name: Gary P. McDaniel
Title: Chief Executive Officer
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By
------------------------------------------------
Authorized Signatory
25
